Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 628 OF 2005

G. Parshwanath ... Appellant

Versus

State of Karnataka        ...Respondent

J U D G M E N T

J.M. PANCHAL, J.

The  instant  appeal  questions  legality  of  judgment  

dated  December  17,  2004,  rendered  by  High  Court  of  

Karnataka at Bangalore in Criminal Appeal No. 1427 of  

2003  by  which  judgment  dated  September  1,  2003  

delivered by the learned Principal Sessions Judge, Bellary  

in  S.C.  No.  91/93  convicting  the  appellant  under

Sections 302 and 201 IPC and sentencing him to undergo  

RI  for  life  and fine  of  Rs.5,000/-  in  default  RI  for  six  

months  for  commission  of  offence  punishable  under  

Section 302 IPC as well  as RI for one year and fine of  

Rs.2,000/- in default RI for two months for commission  

of  offence  punishable  under  Section  201  IPC,  is  

confirmed.

2. The facts emerging from the record of the case are  

as under :-

Deceased Chethana was daughter of Jwalnaiah and  

Smt.  Radhamma.   The  parents  of  the  deceased  were  

residents of Bangalore.  Marriage of deceased Chethana  

took place  with the  appellant  in  the  year  1987.   After  

marriage the deceased started residing at Bellary because  

the appellant and his family were residents of Bellary.  In  

the year 1988 the deceased gave birth to a male child,  

who  was  named  Mahaveer.   Initially  the  relations  

between  the  appellant  and  the  deceased  were  cordial,  

but,  after  sometime  bickering  started  taking  place  

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between the two of them.  As the days passed by, this  

bickering  grew  into  discordiality  resulting  in  the  

harassment and cruelty to the deceased by the appellant.  

The deceased used to complain about harassment and  

cruelty meted out to her, to her father, mother and sister  

when  she  had  occasion  to  meet  them.   The  deceased  

Chethana had mentioned before her sister Ranjana Jain  

that  the  appellant  was  treating  her  cruelly  and  was  

harassing her because he was having a doubt that the  

male  child  was  not  born  through  him  and  that  the  

appellant  was  having  illicit  relationship  with  one  girl  

named Asha of Bangalore.  The harassment meted out to  

the  deceased  reached  such  a  peak  that  one  day  the  

deceased  had  to  call  her  parents  to  Bellary  and  the  

parents  had  to  take  help  of  police  to  take  back  the  

deceased  to  their  house  at  Bangalore.   Obviously,  the  

appellant was annoyed and, therefore, the appellant filed  

a  petition  for  divorce.   During  the  time  when  the  

deceased was staying with her parents at Bangalore and  

when the divorce petition was pending, efforts were made  

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to  settle  the  disputes  between  husband  and  wife  

amicably.   The  result  of  those  efforts  was  that  the  

appellant had withdrawn the divorce petition whereas the  

deceased had started living with the appellant at Bellary.  

On the surface, the differences appeared to have cooled  

down for some time but nevertheless ill treatment of the  

deceased by the appellant  and ill  feelings  between the  

appellant and his family on one hand and the deceased  

on the other continued.

On May 13, 1993 around 1.45 P.M. the neighbours  

of the appellant noticed smoke and fumes emitting from  

the house of the appellant, which was situated at Ganesh  

Temple  Street,  Bellary.   One  of  the  neighbours  

summoned fire brigade service and also informed police.  

Papaiah  and  Neelakanat,  who  were  then  fire  brigade  

officials, rushed to the house along with their team.  They  

had to break open the front door of the house.  When  

they  entered  the  house,  they  noticed  two  completely  

burnt and charred bodies of a woman and child in one of  

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the  rooms.   They  found  that  the  appellant  was  not  

present  in  the  house.   They  also  noticed  that  the  

appellant  had  come  back  to  his  house  only  after  the  

information  about  the  fire  having  taken  place  in  his  

house was conveyed to him.

On receiving a phone call in the police station, ASI  

on  duty  went  to  the  spot  and  made  enquiry  with  the  

appellant, who by that time had come back to his house.  

On the basis of the statement made by the appellant the  

ASI  registered  a  case  as  UDR  No.  9/93  and  sent  

requisition to the Executive Magistrate to draw inquest  

proceedings.  Accordingly Mr. Mahmood, who was Taluka  

Executive Magistrate, went to the spot and held inquest  

on  the  dead  bodies  of  the  two  deceased.   When  the  

inquest  proceedings  were being held,  the  father  of  the  

deceased, i.e., Jwalnaiah arrived at the scene along with  

Smt. Jayashanti, who was one of the neighbours of the  

appellant.  The statements of the father of the deceased  

and Smt. Jayashanti were recorded and photographs of  

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the  dead  bodies  were  taken.   The  dead  bodies  were,  

thereafter, sent for post mortem examination.

When the Executive Magistrate was holding inquest  

proceedings,  he  suspected  that  the  deaths  of  the  two  

deceased were unnatural and seemed more to be a case  

of their murder.  Therefore, he sent intimation to the ASI.  

On receipt of the intimation the ASI registered a case as  

Crime  No.  121/93  for  the  offences  punishable  under  

Sections 302 and 201 IPC against the appellant alone.  

After registration of the FIR, the same was sent to the  

jurisdictional Magistrate as well as to the higher officials.  

Because  of  the  gravity  of  the  incident  and  offences  

involved,  the  investigation  was  taken  over  by  

Somashekar,  who  was  then  Inspector  of  Police.   The  

Police Inspector recorded statements of the neighbours,  

close  relatives  and  others,  who  were  found  to  be  

conversant  with  the  facts  of  the  case.   The  Police  

Inspector suspected that the appellant was responsible  

for  the  murders  of  the  deceased  and,  therefore,  he  

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arrested  the  appellant  at  about  8.00  P.M.   Necessary  

mahazars were drawn and certain incriminating articles  

as  well  as  documents  were  seized.   During  the  

investigation,  it  transpired  that  over  and  above  the  

complicity  of  the  appellant  in  two  murders,  Radhabai,  

who was mother of the appellant and Jaishree, who was  

sister of the appellant, were also involved in the murders  

of the deceased.  Therefore, they were also arrested.  On  

conclusion of investigation the appellant, his mother and  

his  sister  were  charge-sheeted  in  the  court  of  learned  

Chief  Judicial  Magistrate,  Bellary  for  commission  of  

offences punishable under Sections 498A, 302 and 201  

IPC.

3. After  the  case  was  committed  to  the  Court  of  

learned Sessions Judge, Bellary for trial, necessary  

charges  were  framed  against  the  appellant,  his  

mother and his sister.  The charges were read over  

and explained to them.  They pleaded not guilty to  

the same and claimed to be tried.  Therefore,  the  

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prosecution examined 32 witnesses and produced  

certain documents in support of their case against  

the three accused.   After  recording of  evidence of  

prosecution witnesses was over, the learned Judge  

explained to  the  three  accused the  circumstances  

appearing  against  them  in  the  evidence  of  the  

prosecution  witnesses  and  recorded  their  further  

statements  as  required  by  Section  313  of  the  

Criminal  Procedure  Code.   The  appellant  filed  a  

detailed written statement inter alia mentioning that  

his  father-in-law,  who  was  a  former  MLA  and  

influential  person, had falsely implicated him and  

his family.  It was stated by the appellant that his  

father-in-law  had  neither  regular  income  nor  

properties  except  one  house,  which  was  given  by  

him on rent  to  tenants,  who were  paying  meager  

rent  of  Rs.1,500/-  per  month  and  thus  he  was  

totally dependant upon the income of his daughter –  

deceased Chethana – who was working as computer  

engineer  at  Bangalore  before  her  marriage  and  

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supporting  the  family.   What was claimed by  the  

appellant was that because of financial crunch from  

which his father-in-law was suffering, his father-in-

law was insisting the appellant to come and stay at  

Bangalore with him as a “Ghar-Jamai”, which was  

opposed by the appellant and since then his father-

in-law  was  nurturing  a  grudge  against  him.  

According  to  the  appellant,  he  was  a  man  of  an  

independent  nature  and had more  responsibilities  

towards his family.  According to him, he had the  

responsibility of running the school established by  

his  family  and,  in  such  circumstances,  he  had  

refused to accept the offer of his father-in-law and  

decided to stay at Bellary only.  It was mentioned by  

the appellant that feeling let down, his father-in-law  

had started pressurizing the deceased to desert the  

appellant  and  come  back  and  stay  with  him  at  

Bangalore  and  to  continue  her  computer  career.  

The appellant had claimed in his written statement  

that  after  the  first  Deepawali  the  deceased  was  

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forcibly  taken  from  Bellary  to  Bangalore  by  his  

father-in-law with the help of police.  It was further  

stated that  when the  deceased was pregnant  and  

had  delivered  the  first  child,  the  appellant  had  

requested  his  father-in-law  and  mother-in-law  to  

send the deceased to Bellary to enable him and his  

family to perform some religious ceremonies, but his  

father-in-law had refused to send the deceased and  

when he had gone to bring his wife to Bellary, an  

attempt  was made by his  father-in-law to assault  

him through his son.  It was also mentioned in the  

written  statement  that  after  the  delivery  of  child  

Mahaveer,  the  deceased  with  the  child  had  come  

back  to  Bellary  and was  living  happily  with  him,  

but, again her parents had taken away her with the  

child forcibly and that is why he had to file a divorce  

petition on the ground of desertion by his wife with  

a fond hope that his wife and child would be sent  

back.  According to him, he was never serious about  

the divorce and that is why he had not taken any  

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further steps to pursue the petition and that is why  

the  divorce  petition  was  dismissed  for  non-

prosecution.  What was stated by the appellant was  

that when the divorce proceedings were pending, his  

wife, i.e., the deceased used to write love letters to  

him and no complaints were made in those letters  

about the so-called harassment and cruelty by him  

to her.  It was asserted that due to decline in the  

income  of  his  father-in-law,  the  parents  of  the  

deceased were pestering the deceased to stay with  

them  whereas  the  deceased  was  inclined  to  stay  

with the appellant and, therefore, out of frustration  

the deceased with minor son Mahaveer committed  

suicide.   The  explanation  offered  in  his  written  

statement further proceeded to state  that on May  

13, 1993, he was at home till 1.00 P.M. and as it  

was a summer holiday for the schools run by him  

and  the  deceased  was  insisting  to  get  the  

refrigerator back from the repair shop, he had gone  

to the shop of  Sattar  Hussein at  whose shop the  

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refrigerator was sent for repairs and informed Sattar  

Hussein that the refrigerator should be sent to his  

home immediately.  It was mentioned by him that  

thereafter  he  had  proceeded  to  his  school  where  

someone had informed about the fire having taken  

place  in his  house and,  therefore,  he had rushed  

back on his motorcycle and found that his wife and  

son  were  dead.   According  to  him,  the  PSI  had  

arrested him, taken his signatures on blank paper  

and  after  deliberations  with  his  father-in-law,  

concocted the present case falsely not only against  

him but  also  against  his  mother  and  sister,  who  

were totally innocent and this was done only with a  

view to harassing him and seeking vengeance.  In  

his  written  statement  the  appellant  had  made  

attempt to point out certain discrepancies appearing  

in  the  investigation  and had ultimately  prayed to  

acquit him of all the charges.

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4. It may be mentioned that though the appellant had  

submitted a detailed written statement, he had not  

examined  any  witness  in  support  of  his  case  

pleaded in the written statement.  During the trial  

the original accused No. 2, i.e., Smt Radhabai, who  

was mother of the appellant, expired and, therefore,  

the appellant and his sister Jaishree were tried by  

the learned Sessions Judge.   

5. On  appreciation  of  the  evidence  adduced  by  the  

prosecution  and  certain  documents  brought  on  

record by the appellant, the learned judge held that  

no  case  either  against  the  appellant  or  his  sister  

was  made  out  by  the  prosecution  under  Section  

498A IPC.  The learned Judge thereafter proceeded  

to  consider  the  question  whether  any  case  was  

made out against  the appellant  and his sister  for  

commission  of  the  offences  punishable  under  

Sections  302  and  201  IPC.   The  learned  judge  

noticed that the case against the appellant and his  

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sister was solely based on circumstantial evidence  

and  that  no  circumstances  could  be  brought  on  

record  to  suggest  that  the  sister  of  the  appellant  

was responsible for the death of the two deceased.  

However, the learned Judge came to the conclusion  

that case against  the appellant  for  commission of  

offences  punishable  under  Sections  302  and  201  

IPC was proved beyond pale of doubt and sentenced  

him as noticed earlier.   

6. Feeling  aggrieved  the  appellant  preferred  appeal,  

which has been dismissed by the High Court, giving  

rise to the present appeal.

7. This Court  has heard the learned counsel  for  the  

parties  at  length  and  considered  the  documents  

forming part of the appeal.

8. The  learned  counsel  for  the  appellant  submitted  

that the appellant had left his house at about 1.00  

P.M. to bring back a refrigerator, which was given  

for repair in the shop belonging to PW-15, who has  

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spoken about the presence of the appellant in his  

shop at the relevant time and, therefore, the High  

Court erred in holding that the appellant  had left  

his  house  at  about  1.00  P.M.  after  committing  

murders of the deceased and had come back only  

after he was informed about the fire having taken  

place  in  his  house.   It  was  pointed  out  by  the  

learned counsel for the appellant that the ASI PW-

23 had recorded the statement of the appellant on  

the  basis  of  which  the  said  ASI  had registered  a  

case  as  UDR  9/93  under  Section  174  of  the  

Criminal Procedure Code regarding unnatural death  

of the two deceased and, therefore, the whole case  

built up against the appellant on the basis of some  

suspicion shown by the Tehsildar, should have been  

disbelieved  by  the  High  Court.   According  to  the  

learned  counsel,  the  inquest  report  was  a  

suspicious  document  because  as  per  the  inquest  

report, which was prepared between 4.00 P.M. and  

6.00  P.M.  on  May  13,  1993,  when  the  inquest  

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proceedings  were  being  held,  the  father  of  the  

deceased had come to the spot and identified the  

two dead bodies, which was highly doubtful because  

the father-in-law of the appellant, who was staying  

at  Bangalore,  was  informed by  one  PT  Master  at  

about 2.00 P.M. that the deceased were dead and  

distance between Bellary and Bangalore being about  

300 Kms., it was not possible for the father of the  

deceased Chethana to be present at Bellary at the  

time  when  inquest  proceedings  were  held  and,  

therefore, inquest report should have been ignored  

by the High Court.  What was argued by the learned  

counsel  for  the appellant  was that  in the inquest  

report the Tehsildar had recorded that there were  

100% burn injuries on the deceased and that her  

clothes  were  also  burnt  and  that  there  were  no  

clothes  on the dead body except  a small  piece  of  

cloth, which was stuck between the thighs and as  

Tehsildar had not noticed any other clothes on the  

deceased,  the  suspicion  entertained  by  the  

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Tehsildar that the case was of murder should not  

have been acted upon by the police.  The learned  

counsel  pointed  out  the  testimony  of  doctor,  

examined as PW-31, who had conducted autopsy on  

the  dead  bodies  of  the  deceased  Chethana  and  

Mahaveer and contended that the report indicated  

at  the  best  that  the  child  had  died  a  homicidal  

death  but  as  far  as  deceased  Chethana  was  

concerned in the opinion of the doctor, he was not  

able  to  state  whether  the  death of  Chethana was  

suicidal or homicidal and, therefore, the High Court  

erred  in  holding  that  it  was  proved  by  the  

prosecution  that  the  deceased  Chethana  and  her  

son  Mahaveer  had  died  homicidal  deaths.   What  

was highlighted was that the trial court did not find  

any  material  against  the  appellant  for  convicting  

him under Section 498A IPC whereas the sister of  

the appellant came to be acquitted of all the charges  

levelled against her and as evidence of prosecution  

witnesses is not reliable at all, the appellant should  

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have been granted benefit of doubt to which he is  

entitled to.   The learned counsel  emphasized that  

the  circumstances  on  which  the  prosecution  

proposes to rely are not firmly established nor they  

form a chain to indicate that it was the appellant  

and appellant alone who had committed murders of  

the two deceased and, therefore, the appeal should  

be accepted.

9. The learned counsel for the State argued that it was  

sufficiently proved by the prosecution that death of  

the  deceased  Chethana  and  Mahaveer  were  

homicidal  deaths  whereas  motive  and  conduct  of  

the appellant towards the deceased when they were  

alive  is  also  proved  and  if  the  above  mentioned  

circumstances  are  viewed  with  false  explanation  

given by the appellant with reference to the incident  

in  question,  it  becomes  at  once  clear  that  the  

appellant  was  the  only  person  responsible  for  

murders of the two deceased.  The learned counsel  

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emphasized  that  on  appreciation  of  evidence  the  

trial court has recorded conviction of the appellant  

under Sections 302 and 201 IPC, which finding on  

re-appreciation of the evidence has been confirmed  

by  the  High  Court  and,  therefore,  the  concurrent  

findings of  facts  should not  be interfered with by  

this Court while exercising powers under Article 136  

of the Constitution.

10. It  is  not  in  dispute  that  the  case  against  the  

appellant  rests  on  circumstantial  evidence  and,  

therefore,  before  adverting  to  the  prosecution  

evidence  against  the  appellant  it  would  be  

advantageous to recall to the memory, law relating  

to  appreciation  of  evidence  in  a  case  based  on  

circumstantial evidence.

11. The evidence  tendered in  a court  of  law is  either  

direct  or  circumstantial.   Evidence  is  said  to  be  

direct if it consists of an eye-witness account of the  

facts  in  issue  in  a  criminal  case.   On  the  other  

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hand,  circumstantial  evidence  is  evidence  of  

relevant facts from which,  one can, by process of  

intuitive reasoning, infer about the existence of facts  

in  issue  or  factum  probandum.   In  dealing  with  

circumstantial  evidence  there  is  always  a  danger  

that conjecture or suspicion lingering on mind may  

take  place  of  proof.   Suspicion,  however,  strong  

cannot  be  allowed  to  take  place  of  proof  and,  

therefore, the Court has to be watchful and ensure  

that conjectures and suspicions do not take place of  

legal  proof.   However,  it  is  not  derogation  of  

evidence to say that it  is  circumstantial.   Human  

agency may be faulty in expressing picturisation of  

actual incident, but the circumstances cannot fail.  

Therefore, many a times it is aptly said that “men  

may tell lies, but circumstances do not”.  In cases  

where  evidence  is  of  a  circumstantial  nature,  the  

circumstances from which the conclusion of guilt is  

to be drawn should, in the first instance, be fully  

established.   Each  fact  sought  to  be  relied  upon  

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must be proved individually.  However, in applying  

this principle a distinction must be made between  

facts called primary or basic on the one hand and  

inference  of  facts  to  be  drawn from them on the  

other.  In regard to proof of primary facts, the court  

has to judge the evidence and decide whether that  

evidence proves a particular fact and if that fact is  

proved, the question whether that fact leads to an  

inference of guilt of the accused person should be  

considered.   In  dealing  with  this  aspect  of  the  

problem,  the  doctrine  of  benefit  of  doubt  applies.  

Although there should not be any missing links in  

the case, yet it is not essential that each of the links  

must appear on the surface of the evidence adduced  

and some of  these  links  may have  to  be  inferred  

from the proved facts.  In drawing these inferences,  

the court must have regard to the common course  

of natural events and to human conduct and their  

relations to  the  facts  of  the particular  case.   The  

Court thereafter has to consider the effect of proved  

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facts.   In  deciding  the  sufficiency  of  the  

circumstantial  evidence  for  the  purpose  of  

conviction,  the  court  has  to  consider  the  total  

cumulative effect of all the proved facts, each one of  

which reinforces the conclusion of guilt and if the  

combined effect of all these facts taken together is  

conclusive in establishing the guilt of the accused,  

the conviction would be justified even though it may  

be  that  one  or  more  of  these  facts  by  itself  or  

themselves  is/are  not  decisive.   The  facts  

established  should  be  consistent  only  with  the  

hypothesis of the guilt of the accused and should  

exclude every hypothesis except the one sought to  

be proved.  But this does not mean that before the  

prosecution  can  succeed  in  a  case  resting  upon  

circumstantial evidence alone, it must exclude each  

and  every  hypothesis  suggested  by  the  accused,  

howsoever,  extravagant  and  fanciful  it  might  be.  

There must be a chain of evidence so complete as  

not  to  leave  any  reasonable  ground  for  the  

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conclusion  consistent  with  the  innocence  of  the  

accused  and  must  show  that  in  all  human  

probability  the  act  must  have  been  done  by  the  

accused,  where  various  links  in  chain  are  in  

themselves  complete,  then  the  false  plea  or  false  

defence  may  be  called  into  aid  only  to  lend  

assurance to the court.

12. Having  noticed  the  principles  governing  the  case  

based  on  the  circumstantial  evidence  this  Court  

proposes to consider the circumstances relied upon  

by the prosecution.

13. The  first  circumstance  relied  upon  by  the  

prosecution is that both the deceased were residing with  

the  appellant  and  that  the  incident  in  question  had  

taken place in the house of the appellant.  The fact that  

the incident in question had taken place in the house of  

the appellant is not disputed by the appellant.  This fact  

also stands proved by the inquest panchnama prepared  

after holding inquest on the dead bodies of the deceased.  

23

The fact that incident in question had taken place in the  

house of the appellant also stands firmly proved by the  

evidence of PW-12 who is mother of the deceased as well  

as  by  other  evidence  on  the  record.  Thus,  it  stands  

proved that at the time of the incident deceased with her  

child was residing with the appellant.

14. The  second  circumstance  relied  upon  by  the  

prosecution is that deceased Chethana had telephoned  

her parents on the date of the incident and complained  

about harassment meted out to her by the appellant. It  

may be mentioned that the contention of the appellant  

that Chethana had not telephoned her parents on the  

date of the incident is not accepted either by the trial  

court or by the High Court. The evidence of mother of the  

deceased  is  recorded  as  PW-12.   She  has  specifically  

stated that on the date of the incident her daughter had  

phoned at her residence and receiver was picked up by  

her husband, i.e., father of the deceased.  It was asserted  

by PW-12 that on telephone the deceased had recounted  

the  harassment  to  which  she  was  subjected  by  the  

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appellant.  It was the case of PW-12 that after narrating  

distress and persecution the deceased had put down the  

receiver saying that she would again telephone later on.  

According  to  this  witness  no  phone  call  from  her  

daughter was received and, therefore, at about 1.00 P.M.  

she  herself  had  telephoned  her  daughter,  which  was  

attended by her daughter at her residence.  What was  

mentioned  by  the  witness  was  that  as  soon  as  the  

receiver was picked up by her daughter the door bell of  

the  house  of  the  deceased  rang  and,  therefore,  the  

deceased had put down the receiver on the cradle saying  

that  her  husband  had  come  and  that  she  would  

telephone her, i.e., PW-12 at 2.00 P.M.  The record of the  

case shows that PW-12 was searchingly cross-examined  

at  length by the  learned advocates  for  the  defence on  

different  dates.   Her  cross-examination  had  begun on  

April  20,  1999  and  concluded  on  June  3,  1999.  

However, the assertion made by the witness that on the  

day of incident at about 11.00 A.M. the deceased had  

reported cruelty meted out to her over the telephone to  

25

her father, could not be demolished at all.  Nor anything  

could be brought on record to doubt the version given  

out by her.  It is relevant to mention that the appellant  

was  son-in-law  of  PW-12.   It  was  suggested  by  the  

appellant  himself  to  PW-12  that  PW-12  had  told  

Chethana over telephone that Ranjana who is sister of  

the deceased and examined as PW-1 in the case would  

be coming to Bellary to take the deceased to Bangalore.  

It  was  also  suggested  that  since  Chethana  was  not  

willing  to  go  to  Bangalore  she  had  told  PW-12  over  

telephone that PW-1 should not come to her residence to  

take her to Bangalore.  These suggestions indicate that  

indirectly it was admitted by the appellant that there was  

a conversation between the deceased Chethana and her  

mother over telephone from the house of the appellant  

on the  date  of  the  incident.   The  claim made by  this  

witness that she had telephoned her deceased daughter  

at  about  1.00  P.M.  but  as  soon  as  the  conversation  

began, the deceased had put down the receiver saying  

that her husband had come was not challenged at all  

26

during  her  cross-examination.   Thus  her  evidence  

establishes beyond shadow of doubt that at about 1.00  

P.M.  the  appellant  had  visited  his  house  and  left  the  

same and subsequently at about 2.00 P.M. one Mr. P.T.  

Master  had  telephoned  the  parents  of  the  deceased  

informing  them about  the  death of  Chethana and her  

child at the residence of the appellant.  Her evidence also  

makes  clear  that  the  incident  in  question  had  taken  

place between 1.00 P.M and 2.00 P.M.

15. The  third  circumstance  relied  upon  by  the  

prosecution  is  that  the  appellant  who  had  visited  his  

house at about 1.00 P.M. had left the same and come  

back when the fire fighters were extinguishing the fire.  

As mentioned above, the appellant had visited his house  

at about 1 P.M.  According to the appellant himself, he  

had left  his house in order to give instructions to the  

shopkeeper  Sattar  Hussain,  at  whose  shop  the  

refrigerator was given for repair.  It is neither the case of  

the  appellant  nor  there  is  evidence  to  show that  any  

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other person had visited his house between 1.00 P.M. to  

2.00 P.M.  Therefore, the only reasonable inference that  

can be drawn would be that after the appellant had left  

the house, no other person had entered the house of the  

appellant.   

PW-4  Papaiah,  fireman  in  the  fire  brigade  was  

asked a crucial question as to where from the door of the  

house was closed. In reply, it was stated by him that he  

was not able to say whether the door was bolted from  

inside  or  locked  from outside.  In  his  police  statement  

recorded under Section 161 of the Code, he had stated  

that the door was locked from outside and, therefore, it  

was broken.  As he tried to plead ignorance about the  

fact whether door was bolted from inside or locked from  

outside, he was treated as hostile to the prosecution.  It  

is settled law that just because a witness turns hostile  

his entire evidence need not be rejected by Court.  The  

cross-examination  of  this  witness  by  the  prosecution  

shows that he had admitted that in his statement before  

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the police, it was stated by him that the door was locked  

from outside.  The learned Judge of the trial court who  

had  the  advantage  of  observing  demeanour  of  the  

witnesses relied upon testimony of this witness for the  

purpose of coming to the conclusion that the main door  

of the house of the appellant was locked from outside.  

This finding has been approved by the High Court on re-

appreciation of the entire evidence.  As discussed earlier,  

the appellant had visited his house at 1.00 P.M. and left  

the same to give some instructions to the shopkeeper for  

repair of the refrigerator.  Thus, the appellant could have  

been the only person who could have locked his house  

from  outside.   This  circumstance  was  put  to  the  

appellant when his statement under Section 313 of the  

Criminal  Procedure  Code  was  recorded.   But  no  

explanation worth the name could be offered by him as  

to  how the  door  of  the  house  was found locked from  

outside.  In addition to this admittedly UDR proceedings  

initiated  on  the  statement  of  the  appellant  have  been  

produced on the record of the case.  Those proceedings  

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indicate that the proceedings under Section 174 of the  

Criminal Procedure Code were initiated at the instance of  

the appellant and the appellant had mentioned therein  

that he had locked the door from outside while going out  

to bring the repaired refrigerator. On the facts and in the  

circumstance of  the case,  this finding recorded by the  

trial court and affirmed by the High Court deserves to be  

accepted by this Court.  Once the conclusion is reached  

that  the  door  was  locked  from  outside  unpleasant  

inference  would  have  to  be  drawn  that  the  door  was  

locked only with the intention to see that the deceased,  

who were set on fire, were not able to come out from the  

house nor any outsider  was in a position to enter the  

house and make attempt to rescue the deceased.        

16. The  fourth  circumstance  relied  upon  by  the  

prosecution is  that kerosene was found by the Doctor  

who  had  conducted  autopsy  on  the  two  dead  bodies.  

The evidence of Dr. Ravichandran PW-21 makes it clear  

that he had found presence of kerosene on both the dead  

30

bodies.  The opinion of this Doctor had been sought as to  

whether  the  death  was  homicidal  or  suicidal  but  the  

Doctor could not give clear opinion.  However, the fact  

that presence of Kerosene was found on the dead bodies  

stands amply proved by the evidence of PW-21.   

17. The another circumstance sought to be relied upon  

by the prosecution is that the deceased wife was alive  

and conscious when she was set on fire and it was not  

probablized by the appellant that when the house caught  

fire the deceased inhaled carbon monoxide due to which  

the deceased had died and subsequently they were burnt  

in  the  fire  which had engulfed  the  house.   The  post-

mortem report of deceased Chethana shows the following  

important features -     

“Body is in a  pugilistic attitude, (ii)  smell of  Kerosene  emanating  from  the  body,  (iii)  swollen  tongue protruding out of the mouth,  (iii)  blood  stained  find  oozing  from nostrils,  (iv)  head hair  is  almost  singed over  the left  half of the head and some short hair is left  over the right half of the head and back, (v)  heat  ruptures  over  the  abdomen at  places  have  exposed  the  peritoneum,  (vi)  skull,  

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vertebrae and  brain congested, (vii)  larynx &  trachea congested with presence of soot, (viii)  pericardium  &  heart  contains  current  jelly  blood clot, (ix) Large contains bright red blood  (x)  Peritoneum  congested,  (xi)  stomach  is  empty, (xii) Liver is congested, (xiii) 4  th   degree    burn present on face, back of trunk and lower  half of left leg whereas 5th degree burn on the  trunk and limbs.”

It is also important to note here the statement of Taluka  

Magistrate  made  on  15.5.1993  wherein  he  had  

categorically stated that “at the time of investigation, and  

from the circumstances of the spot and from the report  

of the medical examination of the bodies, it is revealed  

that both the deceased were made to stop breathing and  

thereafter, kerosene was poured on them and they were  

burnt.”

The post-mortem report of deceased child Mahaveer  

reveals the following important features-

    A. i) Body is in a  pugilistic attitude, (ii)  smell of  kerosene emanating from the body,  (iii)  intestine  protruding out,  (iii)  heat  ruptures  present  over  the trunk and limbs,  (iv)  head  hair  is  almost  singed,  (v)  skull,  vertebrae and brain congested  (vii)  larynx &  trachea congested with presence of soot, (viii)  pericardium  &  heart  contains  current  jelly  

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blood clot, (ix) Large contains bright red blood  (x)  Peritoneum  congested,  (xi)  stomach  is  empty, (xii) Liver is congested, (xiii) 5  th   degree    burn present on body except on back of trunk  whereas 6th degree burn on  both the knees,  wrist & right ankle.

B. Opinion in post mortem regarding death of  Mahaveer  is;-  “...burns  are  homicidal  in  nature, precipitated by Kerosene”

In  the  report  made  under  Section  174  Criminal  

Procedure  Code  following  facts  were  noticed  regarding  

position  of  the  dead  bodies,  extent  of  burns  and  

materials recovered from the scene of incident -

“(i)  Re' position of bodies:-

Dead  bodies  were  found  in  dressing  room  (first room). Child's head was resting towards  Chethana.  Head of the body was resting on  half filled wheat bag. Fingers of the body was  burnt.

(ii) Re' Extent of burn in the room:-

The  investigation  report  shows  that  the  northern,  eastern  and  southern  side  of  the  room had the impact  of  flames.  The bodies  were found near the southern side of room.  Western side of  the room did not have any  impact.  An iron bucket and steel mug were  found near the bodies, which were smelling of  kerosene oil.  

(iii) Re' items seized during investigation:-  

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Apart  from other  things  a  bucket  and mug  smelling  of  kerosene,  a  used  matchstick  found  near  the  main  door  of  house, door  planks, near the  main door outside, a brass  and  steel  door  latch  on  which  the  words  Phillips/Lever  is  written  and  appeared  to  have been broken by pressure.”

18. At this stage, it would be relevant to refer to Medical  

Jurisprudence  and  Toxicology  by  H.W.V.  Cox  wherein  

burns inflicted before or after death is dealt with at Page  

322.  The learned author  has made following pertinent  

comments on the said page -    

“Were  the  Burns  inflicted  before  or  after  Death?  -  This  primary  decision  is  of  great  forensic  importance,  because  of  the  possibility of the disposal of a criminal death  in  a  fire.  The  differentiation  between  antemortem and post-mortem burns must be  attempted  in  every  examination  of  a  fatal  burning.  Although  this  may  be  difficult  or  even  impossible  in  some  cases,  it  must  be  uppermost  in  the  mind  of  the  medical  examiner.

The  most  important  criterion  is  the  presence or absence of a vital reaction at the  margin of the burns. Where part of the body  surface is burnt during life, there will almost  inevitably be a zone of hyperemia at the edge  of the burn area, except when death follows  very soon afterwards. While the person is still  

34

alive, there may be reddening of the skin even  beyond  this  zone,  but  this  may  fade  after  death  leaving  only  the  marginal  zone  of  erythema at the edge of the burn. This may  vary in width but is usually a centimetre or  so unless death supervened very soon. It  is  due  to  oedema of  the  tissues  and  capillary  dilatation  and  merges  with  the  edge  of  the  burn which may show blistering or charring.  Unfortunately,  where  death  occurs  very  rapidly  (within  a  few  moments)  then  the  erythematous  margin  of  an  ante-mortem  burn  may  be  indistinct  or  even  absent.  However, wherever survival persists for more  than a  few moments  it  is  almost  invariably  found.

The presence  of  a  vital  reaction is  absolute  proof that the person was alive during the fire  as this cannot be simulated in a post-mortem  burn. Blistering and reddening of the actual  burned  area  can  occur  in  a  post-mortem  burn  but  not  the  peripheral  zone  of  vital  reaction.

Difficulty  arises  where  the  body  is  completely  covered  with  burns  so  that  no  unburnt  skin  remains  to  display  a  vital  reaction. Where the body is actually charred  or  incinerated  then  naturally  this  aspect  of  determining  the  time  of  the  burn  is  impossible.”

“The next important matter is the presence of  carbon monoxide in the body, which may be  obvious  even  externally  by  the  pinkness  of  the  post-mortem  hypostasis.  In  many  fire  victims, the first incision at autopsy reveals a  

35

cherry-pink colour of the blood and muscles  which  can  be  confirmed  by  simple  spectroscopic  examination  to  be  due  to  carboxyhaemoglobin. Even in rapid fires such  as in automobiles, considerable quantities of  carbon  monoxide  may  be  released  and  be  respired even though life only survives for a  moment or two.

However, great caution must be used in  interpreting  carboxyhaemoglobin  in  fire  victims.  The  following  two  rules  are  of  first  importance:-

a)  If  the  tissues  of  a  deceased  victim  contain a significant quantity  of  carbon  monoxide  (say  more  than  10%  saturation)  then the victim must have been alive during  the fire.

(b) However, if the tissues contain no carbon  monoxide, this does not mean that he must  have been dead during the fire.”

Again Modi in his Medical Jurisprudence and Toxicology  

has made following relevant observations at Page 212A -

a) External

The  face  is  either  calm  and  pale  in  slow  asphyxia  or  distorted,  congested  and  cyanosed  in cases of  sudden asphyxia.  The  lips and nails are livid.  Cadaveric lividity is  more marked and best seen within few hours  of  death.  The  tongue  is  protruded  in  most  cases  and  the  frothy  and  bloody  mucus  comes  from  the  mouth  and  nostrils.  Rigor  

36

mortis is usually slow to commence, but may  be rapid in some cases.

(b) Internal

The  mucous  membrane  of  the  trachea  and  the larynx is cinnabar-red due to its injection  and contains froth. The lungs are dark and  purple in colour and gorged with dark venous  blood. On being cut, they exude frothy, dark,  blood  stained  fluid.  The  air-cells  are  distended  or  even  ruptured  due  to  emphysema.  The right cavity of the heart is  full  containing  dark  coloured,  imperfectly  clotted  blood,  and  so  are  the  pulmonary  artery and the venae cavae. The left  cavity,  the aorta and the pulmonary veins are empty.  In  many cases,  both sides  of  the  heart  are  found to be full. If examined soon after death  but after rigor mortis has set in, the heart is  found contracted and empty or the tension in  the  abdomen  presses  on  the  inferior  vena  cava  and  drives  blood  up  into  the  heart.  Similarly,  the  lungs  are  found heavier  with  the blood collected in the dependent parts if  examined  sometime  after  death,  or  the  tension in the abdomen or contraction of the  heart  muscle  will  drive more blood into the  lungs, irrespective of the cause of death.

    The brain is congested, but not so much  as  in  death  from  coma.   The   abdominal  organs are found congested. Numerous small  petechial  haemorrhages  or  ecchymoses  known as Tardieu Spots are seen under the  serous membranes of various organs due to  rupture of the capillaries caused by increased  pressure in them. These are usually round,  dark and well-defined, varying in size from a  pin's head to a small  lentil.  They are found  

37

under  the  visceral  pleurae,  pericardium,  endocardium, thymus, meninges of the brain  and  the  cord,  conjunctivae,  epiglottis  and  even  under  the  skin  of  the  face,  neck  and  eyelids.  They are  sometimes seen in deaths  occurring from scurvy, pupura, haemophilia,  bacterial  endocardities  or  coronary  thrombosis.  These  must  be  distinguished  from small post-mortem haemorrhages in the  conjunctivae or the skin of dependent parts  due to gravity; usually they are more diffuse  and even larger”.

19. The  comments  made  by  the  learned  author  read  

with  the  contents  of  the  post-mortem  reports  of  the  

deceased would enable the court to conclude that both  

the deceased were alive when they had received the burn  

injuries and, therefore, the trial court as well as the High  

Court  were  justified  in  rejecting  the  contention  of  the  

appellant  that  both  the  deceased  had  received  burn  

injuries after they were already dead.

20. The sixth circumstance on which the prosecution  

has relied upon is that the death of Chethana and death  

of  her  son Mahaveer were homicidal  and not  suicidal.  

There is not much dispute that the deceased and her son  

38

had  died  of  extensive  burn  injuries.  This  fact  stands  

amply proved even otherwise by the contents of the post-

mortem reports produced at Exhibit P-10 and Exhibit P-

31  coupled  with  the  evidence  of  the  Doctor  who  had  

conducted autopsy on the dead bodies.  The evidence of  

fire brigade personnel i.e. PW-4 and PW-5 who were the  

first  to  enter  the  house  and  the  photographer  PW-14  

clearly  establishes  that  both  the  deceased  had  died  

unnatural  death  due  to  excessive  burn  injuries.  On  

perusal of the photographs produced on the record of the  

case,  it  has  been  noticed  that  the  dead  bodies  were  

found lying inside a room next to each other. The scene  

of  offence sketched clearly  indicates  that the house of  

the  appellant  is  a  big  one,  having  a  large  courtyard  

behind the living rooms etc.  It is to be noted that if the  

deceased had tried to commit suicide after setting herself  

on fire she could not have slept peacefully on the floor as  

is indicated in the photograph because of the intensive  

heat. Further, the burning process would make her run  

around and not only in the room but in the entire house.  

39

However, the photograph Exhibit P-24 clearly indicates  

otherwise.   The  trial  court  and  the  High  Court  have  

rightly  held  that  the  suicide  theory  put  forth  by  the  

defence is not only improbable but also impossible.  

21. The contention of the appellant that because of the  

mental  pressure  on  the  deceased,  she  had  committed  

suicide   is not supported by any material evidence on  

the  record.  It  is  true  that  the  evidence  shows  that  

Jwalnaiah who was father of the deceased was an active  

politician  and  an  MLA  and  he  used  to  have  lots  of  

visitors at his house everyday.  It is also true that he had  

let out a portion of his house on rent.  However, these  

facts  would  not  show  that  he  was  welcoming  and  

entertaining the visitors of his house from the income of  

his  deceased  daughter  Chethana.   The  evidence  of  

witness  Ranjana  PW-1  who  is  sister  of  the  deceased  

shows that Chethana had taken up the job only after her  

marriage and not before her marriage.  To contend that  

the deceased committed suicide because of the mental  

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pressure exerted on her by her parents is to ignore the  

realities of life.   

22. The argument that in absence of motive on the part  

of the appellant to kill the deceased benefit of reasonable  

doubt should be given, cannot be accepted.  First of all  

every suspicion is not a doubt.  Only reasonable doubt  

gives  benefit  to  the  accused  and  not  the  doubt  of  a  

vacillating  judge.   Very  often  a  motive  is  alleged  to  

indicate the high degree of probability that the offence  

was committed by the person who was prompted by the  

motive.   In  a  case  when  the  motive  alleged  against  

accused  is  fully  established,  it  provides  foundational  

material  to  connect  the  chain  of  circumstances.   It  

afforts a key on a pointer to scan the evidence in the  

case  in  that  perspective  and  as  a  satisfactory  

circumstance of corroboration.  However, in a case based  

on circumstantial evidence where proved circumstances  

complete the chain of evidence, it cannot be said that in  

absence of motive, the other proved circumstances are of  

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no consequence.  The absence of motive, however, puts  

the court on its guard to scrutinize the circumstances  

more carefully to ensure that suspicion and conjecture  

do not take place of legal proof.  There is no absolute  

legal proposition of law that in the absence of any motive  

an accused cannot be convicted under Section 302 IPC.  

Effect of absence of motive would depend on the facts of  

each case.   Therefore,  this Court  proposes to examine  

the question of motive which prompted the appellant to  

commit  the  crime  in  question.   The  prosecution  has  

alleged that the appellant had dislike for his deceased  

wife as he was suspecting that he had not fathered the  

child and he was contemplating to marry another girl.  

Some of the letters produced by the prosecution would  

indicate that the deceased was suffering a lot because of  

unnatural  conduct  of  the  appellant  towards her.   The  

evidence of mother of the deceased would also show that  

the deceased was subjected to harassment. The finding  

recorded by the High Court that from a letter relied upon  

by  the  defence  i.e.  Exhibit  D-2  it  transpires  that  the  

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appellant was harassing the deceased and treating her  

with cruelty because he was desirous  of marrying some  

other  girl  cannot  be  ignored.   The  contents  of  other  

letters produced by the defence namely Exhibit D-5, D-6  

and  D-9  indicate  that  there  was  definitely  something  

wrong between the appellant  and his  wife.   They also  

indicate that the appellant was suspecting character of  

the  deceased  and  definitely  causing  mental  cruelty  to  

her.  This constitutes sufficient motive on the part of the  

appellant to kill his wife and child.  It may be mentioned  

that  the  appellant  had  initiated  divorce  proceedings  

against deceased.  Those proceedings were dismissed for  

default.   No  doubt,  these  are  letters  prior  to  divorce  

proceedings but they definitely give indication as to the  

character  and  conduct  of  the  appellant  towards  

deceased.   The  testimony of  Sushila  Gogi  recorded  as  

PW-17  shows  that  the  appellant  was  the  son  of  her  

mother through her second husband.  It was claimed by  

her that the deceased used to write letters to her stating  

that  the  appellant  was  subjecting  her  to  ill-treatment  

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saying that the child was not born through him.  Her  

testimony would indicate that she had given reply to the  

letter of Chethana and one such reply was produced at  

Exh. P-25.  She informed the Court that the appellant  

was  intending  to  contract  second  marriage  and,  

therefore,  she had written Exh. P-25 to Chethana and  

informed Chethana that she would give suggestions to  

her to avoid such an eventuality if she was inclined to  

meet her.  Though this witness was also cross-examined  

searchingly,  nothing  could  be  brought  on  record  to  

impeach her credibility.   It  is relevant to mention that  

the  suggestion made  by  the  defence  that  this  witness  

had demanded money and on refusal by the accused she  

was deposing against them was emphatically denied by  

her.  At the time of tendering evidence before the Court  

she  was  serving  in  Karnataka  University.   She  was  

serving the University since 1982 and her husband was  

working as Clerk in a bank.  She had four children, who  

were studying.  There is nothing on record to probablize  

the  case  of  defence  that  this  witness  had  made  any  

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attempt to blackmail the appellant.  It is well settled that  

suggestion  made  but  assertively  denied  does  not  

constitute evidence.  Thus her evidence also establishes  

the motive on the part of the appellant for commission of  

crime in question.

23. If all the circumstances mentioned above are taken  

together  coupled  with  the  absence  of  any  material  to  

indicate that Chethana had committed suicide with the  

child, they lead to only one inference that in all human  

probability the murders of the deceased were committed  

by the appellant alone and none else.  From the evidence  

of  PW-3  ASI  Nagaraj,  it  is  clear  that  the  appellant  

knowing fully well that he had committed murders of his  

wife  and child  gave false  opinion to  the  police  on the  

basis  of  which  UDR  proceedings  were  initiated.  By  

examining the refrigerator repairer it was sought to be  

suggested by the appellant that he was not present in  

his house when the incident had taken place.  Thus, the  

defence of the appellant was that a fire had taken place  

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in his house and both the deceased had died because of  

inhaling  of  carbon  monoxide  after  which  their  bodies  

were  burnt  because  the  house  was  engulfed  in  fire.  

However, at another stage the defence of the appellant  

was that his deceased wife with his child had committed  

suicide  because  her  parents  were  pressurizing  her  to  

leave  matrimonial  home  for  their  selfish  purpose  of  

having income of the deceased.  Whereas, the deceased  

was not  inclined to  leave her  matrimonial  home,  thus  

more  than  one  and  totally  inconsistent  defences  have  

been taken by the appellant.  All the defences were false  

to the knowledge of the appellant.  Not a single defence  

was found to be probable or plausible either by the trial  

court  or  by the  High Court.   The appellant  could not  

explain satisfactorily the circumstances in which his wife  

and child met violent deaths.  Therefore, offering of false  

explanation by the appellant regarding death of his wife  

and  child  will  have  to  be  regarded  as  an  additional  

circumstance  against  him  strengthening  the  chain  of  

circumstances already firmly found.

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24. The evidence on record has been rightly appreciated  

by the trial court and the High Court.  On appreciation  

of  evidence,  the  appellant  is  found guilty.  Neither  the  

reasons given by the trial court nor given by the High  

Court  can  be  termed  as  perverse  so  as  to  call  for  

interference  of  this  court  in  the  instant  appeal.  The  

appeal  lacks  merits  and  is,  therefore,  liable  to  be  

dismissed.  

25. Hence, the appeal is dismissed.

……………………….J. [Harjit Singh Bedi]

……………………….J. [J.M. Panchal]

New Delhi; August 18, 2010.

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