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PETITIONER: BHAGWAN SWARUP AND ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT28/08/1991

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR 2062            1991 SCR  (3) 820  1991 SCC  (4)  54        JT 1991 (6)   309  1991 SCALE  (2)414

ACT:     Penal     Code,    1860--Sections    302,    201     and 120-B---Charges-Conviction  by High  Court--Modification  of sentence  by  convicting  accused no. I u/s.  202.  IPC  for making  illegal omission to inform the authorities  and  ac- quitting  the accused of the offences by Supreme Court  u/s. 2(a) of the Supreme Court (Enlargement of General  Appellate Jurisdiction) Act. 1970.     Supreme  Court (Enlargement of General Appellate  Juris- diction)  Act, 1970--Section  2(a)--Appeal--Appreciation  of evidence--conspiracy  cannot  be proved by  conjectures  and surmises--Absence  of evidence to connect accused  with  the offences--Modification of sentence by convicting accused no. 1  u/s. 202, IPC. for making illegal omission to inform  the authorities.     Evidence  Act,  1872---Section 3--Appreciation  of  evi- dence-Failure    of   prosecution   to   prove   guilt    of accused--Conviction  of  accused no. 1 u/s.  202,   IPC  for making illegal omission to inform the authorities.     Penal Code, 1860---Section 202--Ingredients to prove  by prosecution indicated.     Penal  Code, 1860--Sections  202,  306--Suicide--Whether offence  of abatement punishable--Whether father-in-law  has obligation  to inform the authorities the suicide of  daugh- ter-in-law.

HEADNOTE:     The  appellants-father and son (A 1 and A 2)-were  tried under Sections 302, 201 and 120-B I.P.C. for causing  murder of the wife of A.2.     The  deceased was married to A 2 in 1961. Two  sons  and one  daughter were born to them. Their matrimonial fife  was not  smooth.  There were frequent quarrels. It  was  in  the evidence  that the deceased was not healthy both  physically and mentally. She was also admitted  in    821 mental  hospital  once. She used to confine herself  to  her room and she appeared to be somewhat mentally deranged.     On  18.3.82 the dead body of the deceased was  found  in her room in the house of the accused. At that time admitted- ly  A  2 was not in the house and he was  at  Suratgarh.  On

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being  informed about the death, A 1 sent for a doctor,  who examined the deceased and declared her to be dead.  Thereaf- ter  A  1 informed P.W. S, the father of the  deceased.  The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the  dead  body  lying in the room and that  it  was  giving rotten smell. P.W. 6 lodged a report before the Police.     The investigation was taken up, held the inquest,  exam- ined  the witnesses and sent the dead body for  post-mortem. The  Doctor  P.W. 2, who conducted the  post-mortem,  opined that  the death was due to head injury and pressure  in  the neck region.     After completion of the investigation, the  charge-sheet was laid. 22 witnesses were examined on behalf of the prose- cution. The accused denied the offences. A 1 stated that  he was  away from 14.3.1982 onwards and was at Jodhpur  in  his daughter’s house. In support of his plea D.W. 1, the neighb- out of A 1’s daughter and his grand-danghter, D.W. 2, namely the  daughter  of A 2 and the deceased were  examined.  A  2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them ’denied the allegations of the pfrosecution.     The  trial  court  held that there was  no  evidence  of conspiracy  between  the A 1 and A 2 for murdering  the  de- ceased and the circumstances relied upon by the  prosecution were  hardly sufficient to connect them with the murder  and the accused were acquitted by the trial court.     The State preferred an appeal before the Division  Bonch of  the High Court and the High Court convicted  them  under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced  each  of them to undergo imprisonment  for  life, against  which this appeal was preferred under Section  2(a) of  the  Supreme  Court (Enlargement  of  General  Appellate Jurisdiction) Act, 1970.     The  appellants contended that the High Court  acted  an prejudice  and  suspicion and that there was  absolutely  no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder. 822     The respondent supported the findings of the High  Court and also contended that the accused would at least be liable of having committed other offences.     Disposing  of the appeal by making modification  in  the sentence, this Court,      HELD:  1.  The second accused was not  present  in  the scene-house,  where the occurrence took place from  11th  to 20th  March, 1982 and that the first accused was at  Jodhpur in his daughter’s house from 14.3.82 to 17.3.82 and returned to  Jaipur on 18.3.82. Therefore, they were not  present  in the house when the deceased died. The Medical Officer,  P.W. 2  could  not  say definitely as to whether  the  death  has occurred  before four days of his examination and  there  is absolutely  no evidence either circumstantial or  direct  to hold that the death took place on 11.3.82 itself as found by the  High  Court. The evidence of D.W. 2 who is  none  other than  the daughter of the deceased and was very much in  the house  throughout categorically stated that her  mother  was alive on 15th March, also. Apart from D.W. 2 the only  other inmate of the house during the crucial period was the  moth- er-in-law  of the deceased who was not even  charge-sheeted. The letter Ex.P-15 written by the first accused does not  in any  manner incriminate them and the High Court has  grossly erred  in holding that A 1 and A 2 entered  into  conspiracy merely  on the basis of conjectures and surmises drawn  from theletter. P.Ws. 4, 9 and 10 have not supported the prosecu- tion case and the remaining evidence does not in any  manner implicate A 1 and A 2 and the other remaining inmate of  the

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house,  the  mother-in-law  of the deceased,  was  not  even suspected.  Therefore having given anxious and careful  con- sideration to the facts and circumstances of the case it  is felt by the Court that the prosecution has miserably  failed to bring home the guilt of the appellants. [835A-E]      2. Section 202 I.P.C. punishes the illegal omission  of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular- ly being the head of the family. Under this provision it  is necessary for the prosecution to prove (1) that the  accused had  knowledge  or reason to believe that some  offence  had been committed (2) that the accused had intentionally  omit- ted to give information respecting that offence and (3) that the  accused  was legally bound to  give  that  information. [836G-H]      3. A 1 was at least under an obligation to give  infor- mation  about the death of the deceased since the  same  was unnatural. From the 823 medical  evidence,  it is clear that it was  not  a  natural death and consequently the death should at least be noted as one  of suicide. Even in the case of suicide an  offence  of abetment punishable under Section 306 is inherent. Therefore even in the case of a suicide there is an obligation on  the person,  who  knows or has reason to believe  ’that  such  a suicidal death has occured, to give information. [835G-836A]     4.  In the instant case A 1 returned to his house  where the  dead  body was lying on 18.3.82 and  the  circumstances clearly  go to show that he had knowledge that the  deceased died of an unnatural death. Therefore he had knowledge or at least had reason to believe that an offence had been commit- ted  even if, at that stage, be thought that it was  only  a suicide.  Therefore it was his bounden duty particularly  as head of the family to inform the authorities. He omitted  to do  so.  On the other hand, he went about telling  that  the deceased was still alive and her condition was serious.  But when P.W. 6, the brother of the deceased, came to the  house and  enquired, A 1 told him that the body would be  Cremated and he intended to do so without informing the  authorities. Therefore  all the ingredients of Section 202 are  made  out against him and he clearly committed the offence  punishable under this Section at. that stage. [838B-D]     5.  The  fact that A 1 himself was made  an  accused  in other  offences  subsequently does not absolve  him  of  his complicity  in respect of the offence punishable under  Sec- tion 202 I.P.C. [838D]     Kalidas Achamma v. The State ofA.P S.H.O. Karimnagar,  I Town P.S., [1987] 2 ALT 937, Approved.     Harishchandrasing  Sajjansingh  Rathod  and  Another  v. State of Gujarat, [1979] 4 SCC 502, Distinguished.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303 of 1984.     From the Judgment dated 19.5.1984 of the Rajasthan  High Court in D.B. Criminal Appeal No. 129 of 1983. R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants. Sushil Kumar and AruneShwar Gupta for the Respondent. The Judgment of the Court was delivered by 824     K. JAYACHANDRA REDDY, J. There are two appellants.  They are father and son respectively and they figured as A 1  and A  2  before the trial court. They were tried  for  offences

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punishable’  under  Sections 302, 201 and 120-B  I.P.C.  for causing   murder   of  Madhu  Saxena,  wife  of  A   2   and daughter-in-law of A 1, the deceased in the case. They  were acquitted by the trial court. The State preferred an  appeal before the Division Bench of the High Court and the Division Bench  of the High Court convicted them under Section  120-B and  Section  302 read with 34 of the I.P.C.  and  sentenced each  of  them to undergo imprisonment for life.  They  have preferred  this  appeal under Section 2(a)  of  the  Supreme Court  (Enlargement of General Appellate Jurisdiction)  Act. 1970.     The  deceased was married to A 2 in the year  1961.  Two sons and one daughter were born to them. A 1, father of A 2, was  a practising lawyer after retiring from the  Government Service.  The matrimonial life of the deceased and A  2  was not smooth. There were frequent quarrels. The accused  lived in  their  own house alongwith the deceased. It  is  in  the evidence  that the deceased was not healthy both  physically and mentally. She was also admitted in mental hospital once. She used to confine herself to her room and she appeared  to be somewhat mentally deranged. The daughter of the deceased, who  was examined as D.W. 2, aged 13 years was  studying  in 1Oth  Class  and she was also living in the same  house.  On 18.3.82 the dead body of the deceased was found in her  room in the house of the accused. At that time admittedly A 2 was not in the house and he was at Suratgarh. On ’being informed about the death A 1 sent for Dr. Madan Lal Arora, who  exam- ined the deceased and declared her to be dead. Thereafter  A 1  informed P.W. 5, Jagmohan Prasad, the father of  the  de- ceased. P.W. 5 went there and enquired. A 1 told P.W. 5 that the  deceased be cremated at 9 A.M. The brother of  the  de- ceased told P.W. 5 that he has .seen the dead body lying  in the room and that it was giving rotten smell. P.W. 6  lodged a  report before the Police. P.W. 22 took up the  investiga- tion, held the inquest, examined the witnesses and sent  the dead  body for post-mortem. The Doctor P.W. 2 conducted  the postmortem.  He found that the body was giving rotten  smell and the skin here and there was peeled off, nails were loose and  the tongue was found in between the teeth. He found  an injury  on the head. He also found that some of  the  organs were decomposed and noticed greenishbrown discolouration  on the  neck. He opined that the death was due to  head  injury and  pressure  in  the neck region. He,  however,  sent  the tissues of the trachea though decomposed and a piece of neck skin  and also viscera for histopathology and  for  chemical analysis, but the  825 pathologist  could not give opinion regarding the  piece  of skin  and the tissues of the trachea. The pathologist  noted that  the skin was discoloured and that the tissues and  the mussle  attached to the trachea showed no  abnormality.  The Doctor  P.W.  2 opined that the head injury  was  caused  by blunt weapon: and that death is. result of neck injury.  The pressure  on  the left and front of the neck  was  apparent. After completion of the investigation, the charge-sheet  was laid.  22 witnesses were examined on behalf of the  prosecu- tion.  The accused dented the offences. A 1 stated  that  he was  away from 14.3. 1982 onwards and was at Jodhpur in  his daughter’s  house.  In support of his plea D.W. 1,  Dr.  Ram Krishna  Mehta, the neighbour of A 1’s daughter,  was  exam- ined. He also examined his grand-daughter D.W. 2, namely the daughter of A 2 and the deceased. A 2 stated that he was  at Suratgarh  from 11.3.1982 onwards. Both of them  denied  the allegations of the prosecution.     The  case registered rests on  circumstantial  evidence:

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The trial court held that there was no evidence of conspira- cy  between the A 1 and A 2 for murdering the  deceased.  It further  held  that there is no legal proof  also  that  the Circumstances  relied  upon by the  prosecution  are  hardly sufficient to connect them with the murder. The trial court. however,  severely  criticised about the  iII-treatment  and hard behaviour of A 1 and A 2 towards the deceased.     The High Court, however, took a different view. The High Court mainly relied on the evidence regarding the ill-treat- ment  of the deceased by A 1 and A 2 and held that  the  ac- cused had strong motive. The High Court has also referred to the earlier incidents in some of the letters. The High Court accepted  the  medical evidence in to and reached  the  con- clusion that the death was homicidal and due to asphyxia due to  head injury and pressure on the neck. Finally, the  High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that  the two accused conspired and got .the  deceased  mur- dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120-B I.P.C.     Shri  R.K.Jain, the learned counsel for  the  appellants submitted that the High Court has merely acted on  prejudice and  suspicion and that there is absoluteIy no  material  to prove the conspiracy and muchless to connect the two accused in any manner with themurder The prosecution examined 22 witnesses. P.W. 1 an Assistant 826 School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased  and A 2 and in the year 1978 when the deceased came to her house she was having some spots ’ of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her  hus- band. On 18.3.82 P.W. 1’s neighbour told her that there  was a  telephone message fxom A 1 that the deceasd was about  to die.  On  that P.W. 1 and others went to the  house  of  the deceased.  They  opened the room from where  bad  smell  was coming  and in that room they saw the dead body of  the  de- ceased which was decomposed. A 1 who was present there  told them  that they would cremate the dead body that  night.  On that  P.W. 5, the husband of P.W. 1 and the brother  of  the deceased objected to. P.W. 1 has also mentioned about  other incidents of cruel treatment meted out to the deceased. P.W. 2 is the Doctor, who conducted the post-mortem and we  shaft advert to his evidence later. P.W. 3 is the eider sister  of the  deceased. She only stated that she got the  information about  the death of the deceased. P.W.. 4 is the son of  the deceased  and A 2. He deposed that on 11th March,  1982  his father  A 2 came with him to the bus-stand to see  him  off. P.W.  4  met the deceased before leaving on the  evening  of 11th March, 1982 and talked to her. At that time the  condi- tion  of the deceased was very weak and she  was  unhealthy. P.W. 4 also deposed that his father A 2 was to go to  Surat- garh  by  the evening of 11.3.82. This witness  was  treated hostile.In the crossexamination by the defence this  witness stated  that his sister Gianwati who was examined as D.W.  2 told him that she went regularly to the room of the deceased to  give  food from 11.3.82 to 15.3.82 and-that  on  16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and  18th  March the deceased did not respond  when  D.W.  2 called her. P.W. 4 further deposed that D.W. 2 also told the same  to her grand-mother. P.W. 5 is the father of  the  de- ceased.  He  also  deposed about the  iII-treatment  of  the deceased  by  the  accused and their demand  for  dowry.  He further  deposed  that the neighbour told them that  he  re- ceived a telephone message from A 1 that the deceased was  ’

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about to die. Thereupon P.W. 5 sent his son P.W. 6 to A 1  s house.  Later he was told by A 1 who came to his house  that the  deceased  died and the Doctor has  declared  her  dead. ThereUpon  P.W.  5 wanted to know the name  of  the  Doctor. Thereupon A 1 told him that the deceased would be  cremated. A  little later P.W. 6 also came and told him that  the  de- ceased  had  died  before many days and her  dead  body  was giving  rotten smell. P.W. 6 is brother of the deceased  and son of P.W. 5. He also.deposed about the ill-treatment meted out  to the deceased. He further stated that on  18.3.82  on receiving the information about the serious condition of the deceased he went to house of  827 the deceased and he found that the deceased had already died and  the A 1 told him that the dead body would be  cremated, whereupon  he informed his father P.W. 5 and then  lodged  a report before the police. The police arrived and prepared  a panchnama.  P.W. 7 is the neighbour of the accused. He  only attested  the site plan prepared by the police. P.W. 8 is  a practising Doctor and he deposed that on 18.3.82 A 1 came to him’ at about 5.30. P.M. and told him that his  daughter-in- law namely the deceased was in serious condition.  Thereupon he  went to the house and saw the deceased. He examined  the deceased and declared her to be dead. P.W. 9 also was  exam- ined to speak about the cruelty but he was treated  hostile. P.W.  10 also belongs to the same locality. He only  deposed that  the  body was emitting foul smell and  he  signed  the inventory  prepared by the police. P.W 11 is a  photographer who took the photographs of the room and the dead body. P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that  the  deceased was seriously ill and thereupon  he  in- formed  P.Ws  1, 5 and 6. P.W. 13 is the cousin of  the  de- ceased.  He also deposed about the cruelty meted out to  the deceased.  He further deposed that on 18.3,82  the  deceased died  and he was asked by P.W. 5 to go to the house  of  the deceased.  He  was informed by A 1 that the  body  would  be cremated. Thereupon he and P.W. 6 went and .gave a report to the police. P.Ws 14 to 21 are the formal official witnesses. Out  of them P.Ws 17, 18, 19 and 20 are examined  who  spoke about  the movements of A 2. The sum and substance of  their evidence  is that A 2 was posted as expert of plant  protec- tion  in  Suratgarh  and that leave was granted  to  him  on 11.3.82. This evidence may not be very much relevant because it  is not the prosecution case that A 2 was present in  the house  at the time of the death of the deceased. P.W. 22  is the Sub-inspector who investigated the case. He deposed that on receipt of the report he went to the place of occurrence, held  the inquest and sent the dead body for postmortem.  He also speaks the seizure of some letters.     In  the examination under Section 313 Cr. P.C. both  the accused  stated that they are innocent. A 1’s case was  that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter’s house and he’ came to Jaipur  only on 18th March, 1982 and then he was told about ’the death of the  deceased.  Thereupon he called the Doctor  P.W.  8  who examined  and pronounced the deceased to be dead. He  denied about the allegations of iii-treatment of the deceased. A  2 stated  that  he married the deceased in the year  1961  and they  were blessed with two sons land one daughter. He  also stated that he was a Gazetted Officer in Agriculture Depart- ment  and he was transferred to various places and  he  also took the deceased with him. He further 828 stated  that  the deceased was sick and  unhealthy  and  was staying at Jaipur. He also stated that his daughter used  to

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give food to the deceased. On 11.3.82 he left for  Suratgarh and  later he came to know about the death of the  deceased. The  accused examined D .Ws 1 to 3 on their behalf. D .W.  1 is a Doctor at Jodhpur. He deposed that he knew A 1 and that he was staying in his daughter’s house in Jodhpur from  15th March, 1982 to 17th March, 1982. D.W. 2 is the daughter of A 2  and  the  deceased aged about 13 years.  She  in  general stated  that her mother was sick and unhealthy and  used  to confine  herself  to the room and she used to give  food  to her.  She also stated that she gave food to the deceased  on 15.3.82  and that she could not give food on 16.3.82 due  to her  own  sickness. Then on 17th and 18th  March,  1982  her mother did not talk to her, therefore she returned with  the food.  She  also  stated that A 1 went  to  Jodhpur  on  the evening  of  14th March and returned from  Jodhpur  on  18th March,  1982. On that day they found that the  deceased  was not  talking and two ladies who came to meet  the  deceased, told that there was something wrong. When her grand-father A 1 returned from Jodhpur he sent for a Doctor and the  Doctor after  examining pronounced the deceased to be  dead.  D.W.2 further  stated  that  the relations  between  the  deceased namely  her  mother and grand-mother were not good.  In  the cross-examination she affirmed that she fell ill on  16.3.82 after  coming from school and therefore could not give  food to  her mother. She denied the suggestion that the body  was decomposed even on 16th and 17th March, 1982. D.W. 3 is  the son  of A 1 and brother of A 2 residing at Jodhpur. He  also deposed  that A 1 came to Jodhpur and stayed from  15th  on- wards upto 17th March, 1982.     From  the above resume of evidence it is clear that  the case  rests  entirely on circumstantial evidence.  The  dead body was found in the house of A 1 and A 2, where admittedly the  deceased’ was also living but she used to confine  her- self  to  that room where the dead body was found-  She  was sick  and unhealthy and that she was not even coming out  of the  room. From the evidence it is also clear that the  food was  given  to her in the room itself and she was  not  even going  out to answer the calls of nature. Some of  the  wit- nesses,  no  doubt, have deposed that the  accused  used  to ill-treat the deceased. But the main question is whether A 1 and  A  2 conspired, as held by the High Court and  got  the murder committed. From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i  also left  Jaipur  and was staying at Jodhpur with  his  daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982. Therefore he was also not in the house at the time  of death. There is no other evidence to 829 show  that  as  to who could have caused the  death  of  the deceased if it is held to be homicidal. The trial court  has doubted  the prosecution case that the death was  homicidal. The High Court after having elaborately examined the medical evidence  reached  the  conclusion that  it  was  homicidal. But .even assuming that it was homicidal, there is  absolute paucity  of  evidence, suggesting even remotely  as  to  who could have caused the death. Though, in our view, it is  not strictly  necessary  in this case to decide  the  nature  of death because even assuming it ’to be homicidal, the accused A  1  ’and  A 2 cannot be convicted unless  there  is  other material to connect them with the crime either ,directly  or indirectly.  However,  we shall first consider  the  medical evidence regarding the cause of the death.     P.W.  2 Dr. M.R. Goel examined the dead body on  19.3.82 and  found 10 injuries which were ante-mortem. Many of  them were  in  the shape of bruises and swellings. He  found  the

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dead  body as highly decomposed and had reached an  advanced stage  of putrefaction. In his opinion the death was due  to the  injury  on  the head and pressure on the  neck  due  to asphyxia. He was cross-examined at length. He admitted  that since the brain was decomposed and was in semi-liquid condi- tion  no  injury therein could be traced. He  also  admitted that  the swelling of the eye was not due to  the  injury.on the  forehead. Coming to the injury on the neck, the  Doctor stated  that no injury was found on the bones of  wind  pipe and  that  portion also was decomposed.  In  further  cross- examination he admitted that he did not make the culture  of the  maggots  crawling on the head. He also stated  that  he could  not say definitely whether the death in  the  circum- stances should’ have occurred before four days. He, however, denied  the  suggestion that he could not  form  a  definite opinion.  As far as this medical evidence is concerned,  the trial court also considered the same at length. The  learned Sessions Judge noted the details in the post-mortem certifi- cate  Ex. P, 1,. There he found against the column cause  of death,  the Doctor has put only a question mark. It is  also noted in the postmortem certificate that P.W. 2 sent a  part of  the neck and viscera for chemical and  histopathological examination.  After  considering the whole evidence  of  the Doctor, the trial court was of the opinion that it was  very difficult to say that the injuries on the head were antemor- tem.  In  nature and at any rate P.W. 2’s evidence  has  not proved  beyond  reasonable doubt that the death of  the  de- ceased  was  due to injuries causing asphyxia and  that  the death was homicidal. The High Court, on the other hand,  has also  noted that the death of the deceased was 4 to 8  days’ earlier  ,as  shown  in  the  post-mortem  certificate.  The learned Judges observed thus: 830               "It is to be noticed that Dr. M.R. Goyal,  who               conducted the post mortem examination, is  not               a  novice but a ’senior Medical Jurist of  the               S.M.S.  Hospital. According to him there  was’               sub-dural  hammatoma  over  occipital  region.               Bruises  were  found  on  the  forehead   left               side  ............               We  have carefully examined the reasons  given               by  the  Sessions Judge for holding  that  the               posecution  has  failed to  prove  thatit  was               homicidal  death .....   ................   In               ’our  considered opinion, all  these  injuries               wereanti-mortem in nature."     The  learned Judges thereafter explained away  the  dis- crepancies between the post-mortem and the medical evidence. We  may  observe that the learned Judges of the  High  Court have  bestowed  considerable  part of the  judgment  on  the aspect of medical evidence and ultimately held thus:               "In substance, we are convinced that it was  a               case of homicidal death. We cannot accept  the               finding  of the trial court on this aspect  of               the case and have got no hesitation in revers-               ing  it  and holding that the finding  is  not               based  on just and proper appreciation of  the               evidence." We have also gone through the medical evidence carefully and we  may  observe that ’we are unable to hold that  the  view taken by the learned Sessions Judge is altogether unreasona- ble.  However, for the purpose of this appeal it may not  be necessary  for us to go through the details of  the  medical evidence.  Even accepting that the death was  homicidal,  we cannot on that ground alone hold the appellants guilty.  The

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proSecution  has  to, satisfactorily and  beyond  reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed.     We  ,have already given a brief resume of the  evidence’ adduced on behalf Of the prosecution. We have ,noticed  that both the accused were not in the house on the day the occur- rence  is said ’to have taken place even assuming that,  the same  took place on 14.3.82. the evidence of D.W. 2  who  is the  only  inmate of the house that was examined  and  whose evidence cannot be brushed aside establishes that the occur- rence probably took place on 15th or 16th March, 1982. It is only on 18.3.82 that the dead body was discovered and it  is only  on  that day the A 1 Came to  his  house,           at Jaipur .from Jodhpur and A 2 admittedly was  831 away  on official duty- The D.W. 2 also speaks to the  same. The  High Court, however, drew some inferences based on  the alleged conduct of the accused and held that the two accused conspired  to kill the deceased. In the first  instance  the High Court held that the accused has a strong motive to  get rid  of  the  accused. For this reliance is  placed  on  the evidence of some witnesses who spoke about the cruel  treat- ment  meted out to the deceased by the accused. The  learned Judges  have  also  relied on some letters  written  by  the deceased.  P.W. 6, the brother of the deceased deposed  that the two accused used to be angry with the deceased and  they did  not  allow him and his family members to  see  the  de- ceased.  Reliance  is placed on the evidence of P.W.  5  who spoke  about the demand of money. The learned Judges of  the High Court mainly relied on this evidence to infer that  the accused  had motive to do away with the deceased.  The  High Court was not prepared to place reliance on the evidence  of P.W. 4 and D.W. 2 who did not support the theory of cruelty. The  High Court, after considering the above  evidence,  ob- served as under:               "Now the question is whether in these  circum-               stances  although there are  circumstances  of               strong  motive  and of cruelty and  of  strong               desire  on the part of accused Bhagwan  Swarup               and  Parmeshwar  Swarup to get rid  of  Madhu,               there is any further evidence of other circum-               stances, by which it can be said that no other               hypothesis except the guilt of the accused  is               possible in the present case." Then  the learned Judges proceeded to consider the  evidence of  P.W. 8 and others. P.W. 8 is a local Doctor who  deposed that  A  1 informed him in the evening of 18.3.82  that  his daughter-in-law  was serious. He went and examined  the  de- ceased  and pronounced her to be dead. P.W. 8  also  deposed that  the  body was giving bad smell and it was  also  in  a decomposed  condition.  Then the High Court  relied  on  the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter-in-law was at her last  breathing and he must inform P.W. 5, the father.  Then the  High  CoUrt proceeded to consider  some  other  circum- stances  which took place from 11th March onward namely A  2 leaving on official duty. The High Court suspected that A  2 designedly left Jaipur to Suratgarh and also surmised that A 2  marking his attendance in the register at  Suratgarh  was with  a  view  to create evidence of alibi.  Then  there  is reference  to  a letter Ex. P. 15 written by A 1 to A  2  on 18.3.82 and according to the learned Judges, this letter was an  effort  to show that the deceased was alive  even  after 11th  March  and according to learned. Judges Ex.  P.  15  a letter of A 1

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832 on the alleged death of the deceased, written by him to  his son  is  a significant feature. This letter  is  dated  18th March,  1982. In that A 1 has simply informed A 2  that  the deceased  breathed  her last and that Doctor, P.W.  8,  pro- nounced  her  dead and that on the next day they  are  going ahead  with cremation. This letter which is on a  post-card, is the most crucial feature, according to the High Court and that  its contents show that both A 1 and A 2  were  guilty- conscious.  We think we need not refer to the  further  sur- mises made by the High Court. Suffice it to say that in  the rest  of the entire judgment only such suspicions  and  sur- mises  have  been mentioned or drawn to reach  a  conclusion that A 1 and A 2 conspired.. At one stage the learned Judges observed thus:               "The more and more we read this letter Ex.  P.               15  dated  18.3.82 more and more we  are  con-               vinced  that  it was a  case  of  pre-planned,               pre-determined conspiracy of committing murder               of  Madhu, which was done on 11th March,  1982               by  both accused, who were  anxiously  waiting               the time when they could get rid of her. It is               also  not Without significance that  Suratgath               is  in  Ganganagar District and a  far.  place               from  Jaipur  and post-card  would  not  reach               there  at least before 24 hours as it  reached               on  20th March and further even  if  telephone               message is sent one would take at least 12  to               18  hours to reach this place. The  fact  that               cremation was decided for the morning and  the               information was sent in the night only goes to               show  that  since the death was  a  result  of               murder,  in  which both the accused  were  in-               volved, there was no occasion to wait for son,               who  was husband of the ill fated  unfortunate               lady  Madhu  to perform last rite or  see  her               face  at least before she is put on fire.  The               merciless  inhuman approach exhibited by  this               letter  is  heart beating,  hair  raising  and               society lacking and consicious shocking and we               are  convinced that such a conduct  would  not               have  been possible but for the fact that  the               object  of  conspiracy of Bhagwan  Swarup  and               Parmeshwar Swarup was achieved by putting  an.               ,end  to the life of Madhu, which was done  on               11th  and during all this time, all that  Par-               meshwar and Bhagwan Swamp were being Were  the               unsuccessful  effort to conceal the murder  of               helpless lady and to create a plea of alibi or               pretended  the natural death. We  are,  there-               fore,  convinced that these circumstances,  if               taken as a whole, proves beyond all reasonable               doubts  that  Bhagwan  Swarup  and  Parmeshwar               Swarup entered into a criminal conspiracy               833               to  commit the murder of Madhu and  with  this               abode intention, common object to fulfill  the               object of conspiracy they committed the murder               of  Madhu in their house on 11th March,  1982,               by  causing  11 injuries on her  person  after               they  had  made it sure that the  son  Prakash               Swamp leaves for Ajmer in the morning and then               Parmeshwar  Swarup left for Suratgarh  in  the               evening and Bhagwan Swarup ultimately left for               Jodhpur  on  14th. These were  all  preplanned

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             pre-determined  well calculated steps  of  the               conspiracy  to commit the murder and  then  to               avoid its detection by these two accused,  who               had  deep rooted patience and  hatred  towards               the  unfortunate  lady Madhu,  who  was  being               treated  with  cruelty which  started  in  the               beginning with the demand of dowry but contin-               ued   later  on  account  of   various   other               reasons." We have extracted the main part of the judgment only to show that  how the High Court has acted merely on  suspicion.  We are  unable to say as to on what basis the High Court  could reach the conclusion that on 11th March, 1982 itself both  A 1 and A 2 committed the murder of the deceased and left  the dead  body. Such a conclusion should be based on  acceptable evidence. There is absolutely no material that the  deceased was  murdered on 11th March, 1982 itself. The  medical  evi- dence simply states that the death could have taken place  4 to  8  days prior to post-mortem. D.W. 2,  the  daughter  is categorical  that her mother, the deceased, was  alive  till 16th  March, 1982 and that being the nature of the  evidence On record, we are unable to appreciate the above  conclusion of  the High Court purely based on suspicion  and  surmises. Further, the learned Judges of the High Court have mentioned in  the  above passage that both the  accused  conspired  to commit  the  murder of deceased and  having  conspired  they themselves  committed  the murder. In our view there  is  no evidence worth men-, tioning to establish these offences.     Naturally  in a case of this nature, the  question  that arises from a layman’s point of view is then who else  could have committed the murder in .the house itself? Perhaps if A 1  and A 2 were present in the house on the day of  homicide then  the situation would have been different and  ’both  of them would have been under an obligation to give an explana- tion and the-absence of a plausible explanation or giving  a false  explanation could have been very  much  incriminating against  them.  The same coupled  with  other  circumstances would  have perhaps brought home the guilt to  the  accused. But the circumstances 834 are different now. A 1 and A 2 were away from the house. The medical  evidence does not at all support that  the  murder, assuming it to be one, could have taken place on 11th  March itself as conjectured by, the High Court. If the murder  has taken  place  some time after 11th March, then A 1 and  A  2 cannot directly be connected with the murder. That being  so unless  conspiracy  as such is established, they  cannot  be held  liable. Then the other inmates in the house  are  only the mother-in-law and the children of the deceased. None  of them  was  suspected  and at any rate no  one  of  them  was charge-sheeted  or tried. Therefore the question of any  one of them being held responsible for the death does not arise. No  doubt a grave suspicion does arise namely that  some  of the  inmates of the house must have been responsible and  an accusing finger Can be pointed against A 1 and A 2 but  from 11th  March  onward  they were not in the  house.  D.W.  2’s evidence  clinches the .issue that the death must have  been taken place only after 16th and before 18th March. It is  in this  situation  the High Court surmised on  mere  suspicion that A 1 and A 2 conspired and also committed the murder  on 11.3.82  itself.  If the murder has been committed  on  11th March  itself the body would have been highly decomposed  by 18th  March,  1982  and would have been  emitting  very  bad smell.  One cannot imagine that the other remaining  inmates of the house would have simply and silently suffered in  the

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house without informing anybody. On the other hand D.W.  2’s evidence is different and she categorically stated that  the deceased  was  alive  upto 16th March. That  appears  to  be natural and there is no reason whatsoever to doubt the same.     As  indicated supra we are inclined. to agree  with  the Sessions ’Court that the medical evidence does not establish the  death  to be one of homicidal. At any rate there  is  a grave  doubt in this regard. The evidence on record  clearly shows  that  the deceased was not mentally sound.  The  fact that  she was not coming out of the room and used  the  same for answering the calls of nature also would snow that there was something abnormal about her and she confined her  move- ments to the four corners of the room. 15th March, 1982  was the last day when D.W. 2 served food to the deceased. There- after she did not go inside the room and on 18th March, 1982 the  dead body was discovered. The evidence of P.W.  2,  the Doctor, also shows that no brain injury could be traced  and he  also did not find any injury on the bones of wind  pipe. In view of these and other admissions the trial court right- ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused. From the above discussion the following important points 835 emerge; It is an undisputed case that the second accused was not  present  in the scene house were  the  occurrence  took place  from  11th  to 20th March, 1982 and  that  the  first accused  was  at  Jodhpur in  his  .daughter’s  houseI  from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. There- fore  they were not present in the house when  the  deceased died-  The Medical Officer, P.W. 2 could not say  definitely as to whether the death has occurred before four days of his examination  and  there  is absolutely  no  evidence  either circumstantial  or direct to hold that the death took  place on  11.3.82 itself as found by the High Court. The  evidence of  D.W.  2 who is none other than the daughter of  the  de- ceased and was very much in the house throughout ategorical- ly  stated  that her mother was alive on  15th  March  also. Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother-in-law of the deceased who was not even charge-sheeted. The letter Ex. P-15 written  by the  first accused does not in any manner  incriminate  them and the High Court has grossly erred in holding that A 1 and A  2 entered into conspiracy merely on the basis of  conjec- tures  and surmises drawn from the letter. P.Ws 4, 9 and  10 have  not supported the prosecution case and  the  remaining evidence  does not in any manner implicate A 1 and A  2  and the  other remaining inmate of the house, the  mother-ln-law of  the deceased, was not even suspected.  Therefore  having given our anxious and careful consideration to the facts and circumstances  of the case we feel that the prosecution  has miserably  failed to bring home the guilt of the  appellants and consequently we are inclined to allow the appeal.     The  accused  were tried for offences  punishable  under Sections 302 read with Section 34, 201 and 120-B I,P.C. only and  in our view the trial court rightly held that  none  of these charges-were proved against them.     The  learned counsel for the respondent State of  Rajas- than,  however, submitted that the accused would atleast  be liable  of having committed other offences. It may be  noted that the question whether they would be liable under Section 498-A or 304-B does not arise for consideration inasmuch  as these  provisions  were  not on the statute on  the  day  of occurrence. However, A 1 was atleast under an obligation  to give  information about the death of the deceased since  the same  was unnatural. Assuming that the prosecution  has  not

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positively proved that the death was homicidal yet from  the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide. Even in the case of suicide an offence of  abetment punishable under Section 306 is inherent. There- 836 fore,  even in the case of a suicide there is an  obligation on the person, who knows or has reason to believe that  such a suicidal death has occured, to give information. In  Kali- das Achamma v. The State of A.P., S.H.O. Karimnagar. I  Town P.S., [1987] 2 ALT 937 it was observed as under:               "In  the  case of every  suicide  abetment  is               inherent.  Whether ultimately it is proved  or               not,  it  is a different aspect.  Abetment  of               suicide is an offence punishable under Section               306  I.P.C. and therefore whenever a  case  of               suicide is there, the body cannot be  disposed               of without informing the Police and further as               provided under Section 174 Cr. P.C. the Police               have to hold an inquest Since it is an unnatu-               ral death. ’ ’ In  the instant case A 1, who reached his house  on  18.3.82 knowing  fully  well  that the deceased  had  already  died, informed  P.W. 8 that the deceased was in a  serious  condi- tion.  Likewise  he informed P.W. 12  on  telephone  without disclosing that the deceased was already dead. However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated.  To  the same effect is the evidence of  P.W.  13. P.W.  6,  the brother of the deceased, on his own  went  and gave  a report to the police. It can thus be seen that  A  1 intentionally omitted to give the information in respect  of the  death  of the deceased which he was  legally  bound  to give. Section 202 I.P.C. is in the following .terms:               "202. Intentional omission to give information               of offence by person bound to inform--Whoever,               knowing  or having reason to believe  that  an               offence  has  been  committed,   intentionally               omits to give any information respecting  that               offence  which  he is legally bound  to  give,               shall be punished with imprisonment of  either               description for a term which may extend to six               months, or with fine, or with both." This  Section  punishes the illegal omission  of  those  who under  law  are bound to give information in respect  of  an offence which he is legally bound to give particularly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl- edge or reason to believe that some offence had been commit- ted  (2) that the accused had intentionally omitted to  give information respecting that offence and (3) that the accused was legally bound to give that information. Shri R.K.  Jain, however, relied 837 on a judgment of this Court in Harishchandrasing  Sajjansinh Rathod  and AnOther v. State of Gujarat, [ 1979] 4  SCC  502 and  contended  that  the word "Whoever"  occurring  in  the opening  part of the Section refers to a person  other  then the  offender  and has no application to the person  who  is alleged  to  have committed the principal offence-  In  that case  the accused were tried for offences  punishable  under Sections 331 and 304 read with Section 34 I.P.C. in  respect of  the death of the deceased and were acquitted..On  appeal by  the State the High Court, however, convicted them  under Section 202 I.P.C. A Bench of this Court while reversing the

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order of High Court observed thus:               "We  have  gone through  the  entire  evidence               bearing on the aforesaid offence under Section               202 but have not been able to discern anything               therein  which may go to establish the  afore-               said ingredients of the offence under  Section               202 of the Penal Code. The offence in  respect               of  which  the appellants were  indicted  viz.               having intentionally omitted to give  informa-               tion respecting an offence which he is legally               bound to give not having been established, the               appellants could not have been convicted under               Section  202  of the Penal Code.  It  is  well               settled  that in a prosecution  under  Section               202 of the Penal Code, it is necessary for the               prosecution  to  establish  the  main  offence               before  making  a person’  liable  under  this               section.  The offence under Section 304  (Part               II)  and  the one under Section  33.1  of  the               Penal  Code  not having  been  established  on               account  of several infirmities  is  difficult               to  sustain the conviction of  the  appellants               under Section 202 of the Penal Code. The  High               Court has also missed to notice that the  word               ’whoever’ occurring at the               opening part of Section 202 of the Penal  Code               refers to a person other than the offender and               has  no application to the person who  is  al-               leged to have committed the principal offence.               This is so because there is no law which casts               duty  on a criminal to give information  which               would  incriminate  himseft.  That  apart  the               aforementioned  ingredients  of  the   offence               under Section 202 of the Penal Code do not               appear  to  have  been made  out  against  the               prosecution  There is not an iota of  evidence               to show that the appellants knew or had reason               to  believe that the aforesaid  main  offences               had been committed."               (emphasis supplied) From  these  observations  it is clear that  there  was  .no evidence to show 838 that the accused therein knew or had reason to believe  that the said offences have been committed and on the other  hand they were made principal offenders. In such a situation  the ingredients of Section 202 can not be said to have been made out.  It  is in this context that the meaning  of  the  word "whoever"  has been considered. But in the instant case A  1 returned  to  his  house where the dead body  was  lying  on 18.3.82 and the circumstances clearly go to show that he had knowledge  that  the deceased died of  an  unnatural  death. Therefore he had knowledge or atleast had reason to  believe that  an offence had been committed even if, at that  stage; he thought that it was only a suicide. Therefore it was  his bounden  duty particularly as head of the family  to  inform the authorities. He omitted to do so. On the other hand,  he went about telling that the deceased was still alive and her condition  was serious. But when P.W. 6, the brother of  the deceased, came to the house and enquired, A 1 told him  that the body would be cremated and he intended to do so  without informing the authorities. Therefore all the ingredients  of Section 202 are made out against him and he clearly  commit- ted  the  offence’  punishable under this  Section  at  that stage. The fact that he himself was made an accused in other

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offences subsequently does not absolve him of his complicity in  respect  of  the offence punishable  under  Section  202 I.P.C.  So far A 2 is concerned, he came to the  house  only after the investigation commenced. Therefore his-case stands on  a different footing. In the result the  convictions  and sentences  awarded against A 1 and A 2 are set aside.  A  1, however, is convicted under Section 202 I.P.C. and sentenced to  undergo six months’ R.I. The appeal is disposed  of  ac- cordingly. V.P.R.                                       Appeal disposed                            1 839