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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: JEET SINGH

DATE OF JUDGMENT:       15/03/1999

BENCH: K.T.Thomas, Syed Shah Mohammed Quadri

JUDGMENT:

Thomas, J.

     Death  of an Armyman’s wife was depicted as a case  of murder  and  the  Armyman was sent up for  trial.   Sessions Court  found it a murder and him the murderer.  Consequently Jeet  Singh,  the respondent was convicted of uxoricide  and was  sentenced to imprisonment for life under Section 302 of IPC.   But  a Division Bench of the High Court  of  Himachal Pradesh  held it to be a case of suicide and exonerated  him of  the  charges.  This appeal is by the State  of  Himachal Pradesh by special leave.

     Sudarshana  Devi,  wife of accused Jeet Singh,  was  a young  fair  and fashionable lass, but "Leucoderma"  in  its nascent  stage had erupted small white patches on her bosom. This became the cause of dislike for her husband towards her as  he  mistook  it to be a kind of leprosy.   Though  their marriage  was  solemnised more than three years  before  her death  Jeet Singh was spending most of his days in the  Army field  except  for short intervals when he used to  go  home availing  himself  of the annual leave.  So Sudarshana  Devi had to remain in her nuptial home mostly without her husband nearby,   but   putting  up   with  the  unsavory   epithets intermittently  hurled  by  her   mother-in-law  and   young sister-in-law at her.

     Jeet  Singh  went  home in April 1987 for  his  annual leave.  He and his wife Sudarshana Devi left together in his family  house at Lahar village (Himirpur District), Himachal Pradesh.  On the fateful night the couple went to bed in the "Overy"  (Which is said to be a bedroom of the house but  on the  next  morning  Sudarshana  Devi was  found  dead.   The shocking  news was conveyed to her father who rushed to  the house  and  saw  the  dead  body of  his  daughter.   As  he entertained doubts about some foul play he decided to report the  matter to the police.  He did it telephonically and the police arrived at the scene promptly.  They held the inquest on  the  dead body and sent it for post-mortem  examination. Three  doctors  of the local district hospital  conducted  a joint  post-mortem examination and it was then revealed that death of Sudarahsan Devi by smothering.

     Prosecution  version is that accused administered some kind  of  insecticide to the deceased either deceitfully  or forcefully and smothered her.

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     Accused  Jeet Singh was arrested on 21.4.1987.  On the strength  of  his  disclosures   PW-24  Kashmir  Singh  (sub Inspector  of Police, Nandaun) recovered a bottle containing green  insecticide, a towel, a vest a steel Kauli, and steel glass and some ground "misri".

     The  trial  judge  counted a number  of  circumstances which  were  adverse  to the accused, such as  the  strained relationship   between   the   spouses,   medical   evidence suggesting  administration of poison, and smothering of  the deceased,  recovery of incriminating articles under  Section 27  of the Evidence Act, the fact that accused and  deceased were  in the same room on the fateful night and that she was found  dead on the early morning and the subsequent  conduct of  the accused.  The Sessions Judge reached the  conclusion from  the  aforesaid circumstances that Sudarshana Devi  was murdered  by the accused.  Accordingly, he was convicted and sentenced as aforesaid.

     The  Division  Bench  of the  High  Court  drastically varied   from  the  aforesaid   conclusion.   Even  on   the circumstances  the  Division Bench differed from  the  trial court.  In the end the High Court held like this:

     "In  light of the evidence that has come on record  of this  case, it may be said that the deceased died of  poison but  it  is  difficult  to   conclude  that  the  death  was homicidal.   As  a matter of fact, it appears that it  is  a case  of suicide for which the accused cannot be held to  be responsible."

     Shri  Anil  Soni,  learned counsel for  the  State  of Himachal Pradesh, while criticising the aforesaid conclusion of the High Court submitted that learned judges have grossly erred  in holding that it is a case of suicide.  The counsel made  a forceful plea that on the medical evidence on  court could  possibly reach a conclusion that it was not a case of homicide.

     Medical   evidence   in   this   case  has   a   great significance.    Prosecution  examined   three  doctors  who conducted  the joint post-mortem examination.  Ext.PB is the Post-Mortem  Report  signed  by all the  three  doctors  who conducted  the joint post-mortem examination.  Ext.PB is the Post-Mortem  Report signed by all the three doctors.   Among them PW.5 - Ft.  P.C.Gupta seems to be the seniormost and he gave  details  of the autopsy in his evidence.  The  defence also  examined  a doctor (Dr.  C.  Madhav Rao -  Prof.   and Head  of  the Department of Forensic Medicines,  I.G.Medical College,  Shimla)  to  speak  to  an  opinion  on  the  data contained in Ext.PB Post-Mortem Report.

     The  general features of the dead body as noted by the doctors,  have  been described in the Post-Mortem Report  as "well  plated hair with Sindoor in the middle partling bindi well  placed  over  forehead  (maroon  coloured  with  white cresent  and  white dot in it) red coloured  lip-stick  well applied  over both lips." Then the various ornaments worn by Subarashana Devi were described.

     The  following are the marks noted by the doctors  for reaching  the unmistakable conclusion that Sudarashana  Devi was subjected to forcible smothering:

     "1.   Three  bruises 1/4" x 1/4" each (on  left  upper

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nasolabial area)

     2.   Three bruises 1/4" x 1/4" each (on left side just below the angle of mouth).

     3.   A  semi-circular  and curved bruise 1.5"  x  1/2" obliquely  placed  along  the face extending  between  right molac bone to right angle of mouth.

     4.   Four bruises 1/4" x 1/4" each on right side  just below and lateral to angle of mouth."

     Pleurae were congested, mucous membrane of trachea and laryinx  were  bright  red, covered with  bloody  froth  and congested, right and left lungs and pericardium of the heart were  congested.   The following injuries were found on  the lower limbs:

     "5.   Multiple  linear abrasion (looking like  scratch marks)  were  present  over dorsum of  hands  and  forearms, varying in size from pin head to 3" in length.

     6.   Five  bruises were present on lateral  aspect  of right thigh, measuring 1/2" x 1/4" each.

     7.   Two  bruises  1/2"  x 1/4" were  present  on  the anterior aspect of the left leg."

     When  the viscera was sent for chemical analysis  Ext. PZ  Report  was  forwarded by the  Chemical  Examiner  which showed  that  it contained halogenated  organic  phosphorous compound.   In  the  context of the said  chemical  analysis reprot  the  following  date  supplied by  the  doctors  who conducted  the post-mortem can also be referred to:  "Linear bluish  discolouration  on  right   iliac  fossa  along  the ingunial ligament."

     Without  seeing  the report of the Chemical  Examiner, the  doctors  who  conducted  the  autopsy  expressed  their opinion  that  the  deceased  had died of  asphyxia  due  to suffocation  caused  by  smothering and/or  internal  airway obstruction.

     After   the  receipt  of   the   Chemical   Examinar’s certificate the following data collected by the doctors also became important:

     "Oesophagus  had  congested mucous membranes and  gave pungent  smell on the dissection.  Stomach was distended and full  of pungent smelling greenish white thick liquied about a  litre.   Mucous  membrances  were  congested....   Liver, spleen and kidney were congested.  Bladder was empty."

     Dr.   C  Madhav  Rao, who was examined  as  a  defence witness,  after looking into Ext.PB - Post-Mortem Report and Ext.   PZ  - Chemical Examiner’s Report, has  expressed  his opinion as follows:

     "In  the present case after going through the Chemical Examiner’s  report,  I  am  of the opinion  that  poison  is responsible  for  death rather than smothering.  It is  true that  the Chemical Examiner’s report has not mentioned about the  strength  of  poison, but as these substances  are  not normally  in  the  post-mortem report  are  consistant  with

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poisoning  by  these  substances, in my opinion it  will  be correct to assume death by poison."

     But at the same time Dr.  C.  Madhav Rao conceded:  "I cannot  rule out the possibility of administration of poisen mixed  with "Misri" under the disguise of medicine."  During cross-examination  he  was  asked about the  possibility  of death  by  smothering  as for the deceased.   The  following answer  was  given  by  him:  "It is true that  one  of  the important distinctive features of smothering is the injuries around  the  mouth  including the inner surface of  the  lip ........   It  is  correct  that   there  are  symptoms   of asphyxia."

     It  appears  to  us that the High  Court  has  totally overlooked  the features of the victim which are  consistent with  the  consequence  of  her  having  been  subjected  to smothering.  The injuries found on both the legs of the dead body  are proof positive that it was a homicidal smothering. We  can  place  reliance  on the opinions of  both  sets  of doctors  that  even without seeing the  Chemical  Examiner’s report  the  doctors  could say that death of  the  deceased might  be  due to smothering, and after seeing the  Chemical Examiner’s  report a doctor could say that poison would also have worked fatally in the victim.

     It  is  more  realistic  to conclude  that  it  was  a himicide either by smothering alone or by poisoning alone or that both causes worked independently and reached the common result.   It  is  quite  possible   that  the  killer  after administering  poison, would have felt that the victim might expel  the  poison  by  vomitting and  then  he  would  have smothered  her  to see that the venom did not get  evacuated and in that endeavour the smothering became fatal.

     The  court cannot ignore the large number of  external injuries  particularly  those  on the legs.  When  they  are counted  in  association  with the  findings  regarding  the internal organs, they all would cumulatively lead to the one conclusion  in favour of the theory of forcible  smothering. In  view  of  such  external  injuries,  a  conclusion  that deceased  would  have  committed suicide is  a  preposterous inference.   We  therefore unhesitatingly dissent  from  the finding of the High Court on that score.

     If  Sudarshana  Devi  was  murdered on  the  night  of occurrence  the next point for discussion is whether accused Jeet Singh was her murderer.  The formost circumstance which stares  at him is that the couple were closetted together in the  same "Overy" (bedroom) during the fateful night.  PW-10 Birbal,  who  is the uncle of accused Jeet Singh and who  is residing  in  the adjoining house, has said in his  evidence that  Jeet  Singh and Sudarshana Devi were together  in  the same  "Overy" on that particular night and that on the  next morning  he found Sudarshana’s dead body lying on the  floor of the "Overy".  The residence of PW-10 - Birbal and accused Jeet  Singh has only one common courtyard.  PW-10 said  that he  slept on the said courtyard during that night.  Except a feeble suggestion put to PW-10 during cross-examination that he  had  a property dispute with Jeet Singh’s  father  (that suggestion  was strongly denied by the witness) nothing else is shown to doubt the truth of his version.

     The  conduct of the accused has some relevance in  the analysis  of  the  whole circumstances  against  him.   Pw-3

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Santosh  Singh  a member of the Panchayat hailing  from  the same ward, said in his evidence that he reached Jeet Singh’s house at 6.15 A.M.  on hearing the news of that tragedy, and then  accused Jeet Singh told him that Sudarshana complained of  pain in the lever during early morning hours.  But  when the  accused was questioned by the trial court under Section 313  of the Code of Criminal Procedure he denied having said so  to PW-3 and further said, for the first tie, that he and Sudarshana  did not sleep in the same room but they slept in two  different rooms.  Such a conduct on the part of accused was  taken into account by the Sessions Court in  evaluating the  incriminating circumstance spoken to by PW-10 that they were  in  the same room on the fateful night.  We  too  give accord to the aforesaid approach made by the trial court.

     The  next  circumstance  against the  accused  is  the disclosure   statements   made  by   the  accused   to   the Investigating  Officer which lead to the recovery of EXT-P.5 -  bottle  (green  insecticide)  from  the  tobacco  bushes, Ext.P-6  towel  and  Ext.P-7 vest from the heap  of  rubbish situated in the compound of his residence, and Ext.P-8 steel Kauli  from his cow-shed.  PW-24 Kashmir Singh Investigating Officer  said  in his evidence that when accused Jeet  Singh was  interrogated  after  arrest he told  the  investigating Officer  thus:   "I  have concealed  the  bottle  containing poison  under  the  bushes  situate  beyond  Gohar,  I  have concealed  the towel and vest under the heap of rubbish  and the steel Kauli in the Lakola of the cow-shed......."

     What  is significant is that when Ext.P-6 and  Ext.P-6 were  sent to the Chemical Examiner he recorded his  opinion after  analysis  that  they  contained  halogenated  organic phosphorous compound.

     Learned   Judges  of  the   High  Court  repelled  the aforesaid  circumstances  on two premise.  One is that  PW-3 Santosh  Singh,  who  was  present  when  the  recovery  was effected,  said that the accused had not made any disclosure statement.   Second  is  that as the places from  where  the recoveries  were made were "open and accessible to  others", the  recoveries cannot be used as evidence under Section  27 of the Evidence Act.

     Both  the  aforesaid  premise were not of any  use  to reject the evidence tendered by PW-24 Investigating Officer. It  must have been during the interrogation of accused  that he  would  have made the disclosures.  It is  not  necessary that  other witnesses should be present when the accused was interrogated by the Investigating Officer.  On the contrary, investigating  officers used to interrogate accused  persons without  the presence of others.  So the mere fact that  any witness  to  the recovery died not overhear  the  disclosure statements  of the accused is hardly sufficient to hold that no such disclosures were made by the accused.

     There  is  nothing in Section 27 of the  Evidence  Act which  renders the statement of the accused inadmissible  if recovery  of  the articles was made from any place which  is "open  or accessible to others".  It is a fallacious  notion that  when  recovery of any incriminating article  was  made from  a  place  which is open or accessible to  others.   It would  vitiate the evidence under Section 27 of the Evidence Act.   Any object can be concealed in places which are  open or  accessible  to others.  For Example, if the  article  is buried  on  the main roadside or if it is concealed  beneath

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dry leaves lying on public places or kept hidden in a public office,  the  article would remain out of the visibility  of others  in  normal  circumstances.  Until  such  article  is disinterred  its hidden state would remain unhampered.   The person  who hid it alone knows were it is until he discloses that  fact to any other person.  Hence the crucial  question is not whether the place was accessible to others or not but whether  it was ordinarily visible to others.  If it is not, then it is immaterial that the concealed place is accessible to others.

     It  is  now  well settled that the discovery  of  fact referred  to  in Section 27 of the Evidence Act is  not  the object  recovered but the fact embraces the place from which the  object is recovered and the knowledge of the accused as to  it.  (Pulikuri Kottaya AIR 1947 PC 67).  The said  ratio has received unreserved approval of this Court in successive decisions.    (Jaffar  Hussain  Dastagir   vs.    State   of Maharashtra  (1969 2 SCC 872), K.Chinnaswamy Reddy vs  State of  Andhra  Pradesh  (AIR  1962 SC  1788),  Earabhadrappa  @ Krishnappa  vs.   State  of  Karnataka  (1983  2  SCC  330), Shamshul  Kanwar vs.  State of U.P.  (1995 4 SCC 430), State of Rajasthan vs.  Bhup Singh 1997 10 SCC 675).

     In the present case, the fact discovered by the police with  the help of (1) the disclosure statements and (2)  the recovery  of incriminating articles on the strength of  such statements  is  that it was the accused who concealed  those articles  at the hidden places.  It is immaterial that  such statement  of the accused is incuplatory because Section  27 of  the Evidence Act renders even such inculpatory stateents given to a police officer admissible in evidence by eploying the words:  "Whether it aounts to confession or not".

     The  High Court observed that the accused had no  good motive  to  liquidete  his  young wife.  This  is  what  the learned Judges of the High Court have stated on that aspect:

     "Although   it  is  not   always  necessary  for   the prosecution  to  prove motive in a criminal trial,  however, this  is one of such cases where motive is essential in case the  prosecution wants to succeed in its endeavours to prove the  case  against the accused.  But, we are  not  convinced with  this  kind of motive.  These factors, narrated by  the prosecution,  are  too narrated by the prosecution, are  too trivial to be taken note of to establish trivial to be taken note  of to establish it.  They are thoroughly insignificant and  do  not in any way, indicate that they could  influence the  accused  to the extent that he would take  the  extreme step of killing his wife."

     Having stated the legal principle correctly that it is not   the  requirement  of   law  that  unless   prosecution establishes  a motive of the accused to murder the  deceased prosecution  must necessarily fail, learned judges proceeded to  treat the case on hand as an exception to the  aforesaid general  approach.   Why  should  the  present  case  be  an exception to the aforesaid legal principle?

     Learned  counsel for the accused invited out attention to  the  decision of this Court in Sharad Birdhichand  Sarda vs.   State  of Maharashtra (AIR 1984 SC 1622) in  which  an earlier  decision in Ramgopal vs.  State of Maharashtra (AIR 1972  SC  656)  was followed with approval  as  laying  down

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different  tests  regarding the mode and manner of proof  in cases of murder by administration of poison.  They are:  (1) Whether there is a clear motive for an accused to administer poison  to  the deceased.  (2) Whether the deceased died  of poison which is said to have been administered.  (3) Whether the  accused  had poison in his possession.  (4) Whether  he had an opportunity to administer it to the deceased.

     On  its  basis  learned  counsel  contended  that  the establishment  of  a  clear  motive is sine qua  non  for  a conviction  in  cases  of murder through  administration  of poison.

     No  doubt  it  is a sound principle to  remember  that every  criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution  has  failed to prove the precise motive of  the accused  to  commit it.  When the prosecution  succeeded  in showing  the possibility of some ire for the accused towards the victim the inability to further put on record the manner in  which such ire would have swelled up in the mind of  the offender  to  such  a degree as to impel him to  commit  the offence  cannot  be  construed as a fatal  weakness  of  the prosecution.    It  is  almost  an  impossibility  for   the prosecution  to  unravel  the full dimension of  the  mental disposition  of  an  offender  towards the  person  whom  he offended.   In this context we may extract the  observations made  by a two Judge Bench of this Court (Dr.  assonant, J - as  the  learned  Chief Justice then was and Thomas,  J)  in Nathuni Yadav vs.  State of Bihar (1978 9 SCC 238):  "Motive for  doing a criminal act is generally a difficult area  for prosecution.   One  cannot  normally see into  the  mind  of another.   Motive is the emotion which impels a man to do  a particular  act.  Such impelling cause need not  necessarily be  proportionally grave to do grave crimes.  Many a murders have  been committed without any known or prominent  motive. It  is  quite possible that the aforesaid  impelling  factor would  remain undiscoverable.  Lord Chief Justice  Champbell struck a note of caution in R.V.  Parlmer (Shourthand Report at p.308 CCC May 1856) thus:

     But it there be any motive which can be assigned, I am bound  to  tell you that the adequacy of that motive  is  of little  importance.   We know, from experience  of  criminal courts  that  atrocious  crimes  of   this  sort  have  been committed  from very slight motives;  not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.’

     Though,  it is a sound proposition that every criminal act  is done with a motive, it is unsound to suggest that no such  criminal act can be presumed unless motive is  proved. After  all, motive is a psychological phenomenon.  Mere fact that prosecution failed to translate that mental disposition of  the  accused  into evidence does not mean that  no  such mental condition existed in the mind of the assailant."

     Be  the  position  as  it may, this is  a  case  where prosecution  succeeded in showing that the accused had  some cause  for  dislike of his wife.  Some of the letters  which accused  had written during the preceding months were seized by  police and marked as exhibits of the prosecution.   Some of  those letters contained the adverse remarks made by  him about Sudarshana Devi’s conduct in domestic activities.  The High  Court did not read much in those letters as exhibiting

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any  prejudice or ill will towards his wife.  Of course such an  interpretation is plausible.  Hence those letters do not afford any clue for the motive to finish her.

     But  there was another side of it.  PW.12 - Raj Kumari one  of  the  elder sisters of Sudarshana Devi  has  in  her evidence  said  that  Sudarshana  had  told  her  about  the accusations  which the accused used to make pointing to  the white  patches  on her body and describing them as marks  of leprosy.  Of course in cross-examination PW.12 admitted that the  accused  was told about such white patches even  before the  solemnisation  of  the  marriage.  PW.13  -  Urmila  is another  elder sister of the deceased and she too has stated in her evidence that Sudarahana Devi told her of the remarks which her in-laws used to make that she was having leprosy.

     It may be that during the pre-marital months Sudarshan Devi  had only one tiny mark of discolouration which was not considered to be of any serious notice.  But as yeres passed the   leucoderma   would  have   caused  spreading  of   the discolouration  to  different  parts of her body.   In  this context  it  is  useful to refer to what  the  doctors  have recorded  in  the post-mortem report regarding that  aspect: "Multiple  depigmented patches of varying sizes were present over  the feet, anterial abdominal wall and sternal area  of chest."

     If  the  in-laws of Sudarshana Devi had  treated  such escalating  white parches as symptoms of leprosy we have  no doubt  that  they  would have conveyed that opinion  to  the accused also.  If the accused was making accusations against her  that  she  was  suffering from leprosy  it  would  have reflected  his mind towards her.  It could be that he  would have  thought of getting rid of a leper as his wife once and for all.

     In this case prosecution has succeeded in establishing all the four tests laid down in Ram Gopal’ sase (supra).

     The High Court Committed a grave error in reaching the conclusion that Sudarashana Devi had committed suicide.  Due to  gross misappreciation of evidence and misreading of  the circumstances  proved in this case, the High Court caused  a miscarriage of justice by clearing the accused who committed such  a  heinous  crime by liquidating  his  hapless  female partner.

     We  therefore  allow  this appeal and  set  aside  the judgment  of  the High Court and restore the conviction  and sentence  passed by the Sessinons Court on the accused.   We direct  the  Sessions  Judge, Hamirpur (H.P.) to  resort  to prompt  steps to put the accused back in jail for undergoing the remaining portion of the sentence.