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PETITIONER: MAHABIR MANDAL AND OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT07/03/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M. MITTER, G.K.

CITATION:  1972 AIR 1331            1972 SCR  (3) 639  1972 SCC  (1) 748

ACT: Penal Code--Murder--Death by poisoning--Tests.

HEADNOTE: The  first appellant and another were conviced under s.  302 read  with  ss. 34, 120B and 201 of the Penal code  and  two other accusedwho  were   tried   along  with   them   were convicted under ss. 120B and 201.On   the   materials   on record, the trial Court and the High Court foundthat   the first  appellant  was  responsible  for  the  death  of  the deceased by poisoning. The doctor who performed the post mortem examination on  the dead body gave evidence that the death of the deceased might have  been a normal death.  He ruled out an asphyxial  death by morphine poisoning, hecause, accrording to him, there was no indication of any of the following characteristics  which are to be found in cases of such a death: "(a) Right lung is full  of blood and left is empty (b) Lividity of  faces  and fingers  and nails (c) Congestion of the brain (d) Froth  or blood froth in the trachea (e) Puncti form ecchymosis in the lungs  with congestion of lung-,".  He was declared  hostile and  another doctor examined by the prosecution also  stated that he could not form any opinion about the Cause of  death except that death had resulted due to respiratory failure. Confirming the conviction of the first appellant for  murder and allowing.- the appeals in part, HELD : (i) The circumstances of the case and the evidence on record  clearly  point  out that  the  first  appellant  was responsible for the death of the deceased and the death  was caused  by poisoning.  When there is no eye witness  of  the occurrence,  the  court  should  not  insist  upon  evidence regarding  the exact manner in which the death  was  caused. Poison  can  be  administered  not  only  orally  but   also hypodermically or intervacularly with the help of a syringe. In  the present case, the conduct of the first appellant  in removing  the dead. body immediately after the death of  the deceased and the same remaining submerged in water for  more than 24 hours prevented promt post mortem examination on the dead body.  On the material, it can be said that there  were some  features  like the congestion of both the  lungs,  the kidney,  the  liver  and the spleen of  the  victim,  which,

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according  to  the  doctor  were  indicative  of  death   by respiratory  failure  and  the  same  could  be  caused   by poisoning.  Tile fact-that the heart of the deceased at  the time of post mortem examination was found to be empty  would not  rule out asphyxial death as a result of poisoning.   In many  cases of asphyxial death both the 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.   The  fact that no poison could be detected  in  the viscera  of  the  deceased would not  militate  against  the conclusion  that  the  death of the’  deceased  was  due  to poisoning.  There ire several poisons which do not leave any characteristic   signs  as  can  be  seen  on  post   mortem examination. [653A-D] 640 Taylor’s  Principles an Practice of  Medical  jurisprudence, Twelfth  Edition, p. 199; Modi’s Medical  Jurisprudence  and Toxicology Seventeenth Edition pp. 125, 447; Legal Medicine, Pathology and Toxicology, by Gonzales, referred to. (ii)  If  circumstantial evidence in the absence  of  direct proof is so decisive that the Court can unhesitatingly  hold that  the death was as a result of administration of  posion (though  not detected.) and that the posion must  have  been administered  by the accused person, then conviction can  be rested  on  it.  Therefore there are no  cogent  grounds  to interfere with the findings of the two courts that the death of the deceased was not natural but homicidal. (iii) No case has been proved against two of the  appellants and  their  conviction  has to be set aside.   The  rule  in section  162  of  the  Code of  Criminal  Procedure  is  not applicable  to statements falling within the  provisions  of clause  (i) of section 32 of the Evidence Act or  to  affect the  provisions  of section 27 of that Act.   But  there  is nothing in the present case to show that statements made  by the  two appellants to the police. on which the  prosecution relied.  resulted  in  the discovery  of  any  incriminating material as may make them admissible under section 27 of the Evidence  Act.   As such the aforesaid  statements  must  be excluded from consideration. Anant  Chintaman  Lagu v. The State of Bombay  ,  [1960]  12 S.C.R. 460 and State of M.P. v. Ramkrishna Ganapatia  Limsey JUDGMENT:

& CRIMINAL APPELLATE JURISDICTION : Cr.  A. No. 97 of 1969. Appeal  by Special Leave from the Judgment and  Order  dated the  31st January, 1969 of the Patna High Court in  Criminal Appeal No. 254 of 1966. A.   S. R. Chari and D. Goburdhun, for the appellants. R.   C. Prasad, for the respondent. The Judgment of the Court was delivered by Khanna, J. Mahabir Mandal (58), Dasrath Mandal (24).   Kasim Ansari  (30), Mahadeo Sah (60) and Kedar Nath  Upadhya  (28) were  tried  in  the  court  of  Additional  Sessions  Judge Monghyr.   The learned Additional Sessions  Judge  acquitted Kedar  Nath  Upadhya.  Mahabir and  Dasrath  were  convicted under section 302 read with section 34, 120B and 201  Indian Penal  Code.   For the offence under section 302  read  with section 34 Indian Penal Code. each of those two accused  was sentenced  to undergo imprisonment for life, while  for  the offence under section 201 Indian Penal.  Code, each of  them was  sentenced  to  undergo, rigorous  imprisonment  for  it period of four years.  No separate sentence was awarded  for

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the  offence  under section 120B Indian.  Penal  Code.   The sentences 641 awarded  to  each  of the two accused were  ordered  to  run concurrently.   Mahadeo  and  Kasim  were  convicted   under sections  120B and 201 Indian Penal Code.  For  the  offence under  section  201  Indian Penal Code, each  of  these  two accused was sentenced to undergo rigorous imprisonment for a period of three years.  No separate sentence was awarded for the offence under section 120B Indian Penal Code to  Mahadeo and Kasim.  The appeal filed by Mahabir.  Dasrath, Kasim and Mahadeo  was  dismissed by the Patna High Court.   The  four convicted accused have now come Lip in appeal to this  Court by special leave. Mahabir accused, who was practising as a homeopathic  doctor at  Jamalpur in district Monghyr, is the father  of  Dasrath accused.  Dasrath was studying in the final year in  Medical College, Dharbhanga at the time of occurrence and was having house surgeon’s training in that college at the time of  the trial.   Kasim  is stated to be the  compounder  of  Mahabir accused, while Mahadeo accused was employed by Mahabir as  a servant to look after Mahabir’s field. Indira  Devi deceased. (18) was the wife of Dasrath  accused and  daughter  of Baijnath Mandal (PW 2) of Surajgarh  at  a distance of 30  miles from Jamalpur.  Indira was aged  about 13  years at the time of her marriage and continued to  stay after  the  marriage at her father’s house  for  about  five years.   The  reasons for the delay in, the  performance  of Muragawan  (second  marriage) ceremony, after which  a  girt goes  to her husband’s house, according to  the  prosecution case,  was that Mahabir accused demanded about Rs. 2,500  as Dan  Dahej from Baijnath PW.  The amount was.  however,  not paid  by  Baijnath.  Letter dated March 29,  1962  was  then received  by Baijnath from Dasrath accused  wherein  Dasrath reminded Baijnath of his promise to pay Rs. 2,500 to Dasrath so that Dasrath might obtain admission in Calcutta  National Medical  College for the purpose of his  further  education. Muragawan ceremony of Indira was performed in April 1962 and Indira  went to-the house of her husband and his  father  in Jamalpur.   A few months after that, in the month of  Bhadon 1962,  Baijnath took Indira to his house after receipt of  a letter  for that purpose from Dasrath accused.  A few  weeks thereafter Indira was taken by Mahabir accused to his house. After  Indira had stayed at the house of  her  father-in-law for some time, Mahabir accused levelled allegations  against Indira that she was having illicit intimacy with his  second son  Rajendra.   Mahabir also sent a letter to  Baijnath  to take   Indira  to  his  house  in  Surajgarh.   Indira   was accordingly   taken  in  the  month  of  December  1962   to Baijnath’s   house.   Mahabir  after  that   expressed   his reluctance  to take back- Indira to his house.  In May  1963 the  Tilak  ceremony of Mahabir’s daughter as  well  as  the marriage  of  Mahabir’s  youngest son Mahendra  were  to  be performed.  Indira was not invited for these occasions  from her father’s house.  Baijnath then took Indira and left  her at the house 642 of  Baijnath  in bringing Indira and leaving  her  at  their house.   On June 7, 1963 Mahabir wrote a letter to  Baijnath wherein  he complained that some people had set fire to  the house  of  Mahabir on the occasion of the  marriage  at  the instance of Baijnath. The  case of the prosecution further is that in August  1963 Mahabir accused went to Calcutta and met Bhai Lal Mandal (PW 18),  who  is  a cousin and partner  in  hotel  business  of

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Baijnath PW, and asked Bhai Lal to request Baijnath to  take his daughter Indira from Mahabir’s house, because Indira was having  illicit intimacy with her husband’s younger  brother who was an engineering student.  Mahabir also told Bhai  Lal that  if Baijnath would not take Indira, he (Mahabir)  would give  some  fatal injection to Indira.  Bhai  Lal  thereupon sent  letter dated August 8, 1963 to Baijnath in an  insured cover.   Referring to the talk with Mahabir, Bhailal  stated in that letter :               "In  the end, Doctor Babu told us that now  he               would take his action very soon.  She was  the               cobra of his house.  He has such an  injection               in  his possession that nothing will be  known               and  she will remain sleeping.  At  present  I               give her one injection at an. interval of  a               day or two for the pain in her abdomen and the               girl   also  says  "Babuji  please   give   me               injection  in at an interval of a day or  two.               The  pain of my abdomen remains subsided  with               the  injection." On the same pretext  he  will               give her that injection also that she will not               even  know  about it and will depart  from  my               house for ever.  He was saying that lie  would               take that action within a month." Indira died in the house of Mahabir accused in Mohalla Naya- gaon  in  Jamalpur  on  the night  of  September  17,  1963. Mahadeo  accused  earlier on that evening had been  told  by Mahabir  accused  to  sleep at the latter’s  house  for  the night.  At about 1.30 a.m. or 2 a.m. on that night,  Mahabir accused,  who is known as Doctor Sahib, awakened Mahadeo  as well  as  Kasim  and Gobind,  another  servant  of  Mahabir. Mahadeo  the n brought a taxi driven by Kedar  Nath  Upadhya accused.  Mahadeo went with Mahabir accused inside the house and  saw  the dead- body of Indira lying on a cot.   No  one else  was  present in the house.  The, mouth of  Indira  was open  and  there were no apparent injuries  on  her  person. Mahabir and Mahadeo accused then picked up the dead body and brought  it  outside the house.  Gobind was  also  asked  to assist in the carrying of the dead body.  The dead body  was then  placed  in  the taxi on the  back  seat.   Gobind  and Mahadeo  sat  below the seat by the side of the  dead  body, while Mahabir and Kasim accused sat on the front seat  along with the driver.  A cement bag with bricks was placed in the boot of the taxi.  The dead body was 643 then  taken  to Kamarganj, Ghat on the bank of Ganges  at  a distance  of  21 miles from Jamalpur.  At the Ghat  the  bag filled with bricks was tied round the waist of Indira’s dead body.  Mahadeo and Gobind took the dead body into the  water of  the  Ganges  and threw it  there  in  chest-deep  water. Mahabir  and others then went back to Jamalpur  and  reached there at 5 a.m. Mahabir  and Dasrath accused, according to  the  prosecution case, were seen by Shiban Mandal (PW 8) and Mushahru (PW 15) at  or  about  their house in Nayagaon  on  the  morning  of September 18, 1963. Head  Constable Suleman Khan (PW 6) was during the  days  of the  occurrence  posted  at police post  Nayagaon.   On  the morning of     September  18, 1963 when he went to  the  tea stall for taking tea,he  heard  from some persons about  the death  of Indira and the removal of her dead body at  night. The Head Constable gave this information at 11 a.m. to  Sub- Inspector  Kishori Lal (PW 2’) at Jamalpur  police  station. The Sub Inspector made an entry about the information in the station diary.

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Sub Inspector Kishori Lal then went to the house of  Mababir and  found  the door closed.  There was no response  to  the knocking  at the door.  Kasim and Mahadeo accused were  then sent for and were interrogated. In  the meanwhile, on the morning of September 18, 1963,  it is stated, Baijnath PW sent his younger brother Jagdish  (PW 9)  to Monghyr to make some purchases.  Baijnath also  asked Jagdish to go to Nayagaon and meet Indira.  Jagdish  reached Nayagaon  at about 8 a.m. In Nayagaon Jagdish came  to  know from his relative Sita Devi that Indira had died during  the previous night and her dead body had been removed.   Jagdish then  hired a taxi, went to Surajgarh and informed  Baijnath about the death of Indira and the removal of her dead  body. Baijnath  and  Jagdish then came in that taxi  to  Jamalpur. Baijnath  on  arrival at Jamalpur lodged report  Ex.  18  at police station Jamalpur at 2 p.m. Sub Inspector Kishori Lal, it is further alleged, went again to  the  house  of Mahabir accused at about  3.30  p.m.  on September  18, 1963.  Mahabir and Dasrath accused  were  not found  in  spite  of  search.   Outside  the  dispensary  of Mahabir, the Sub Inspector found lying on a table two  empty ampules of coramine, one empty phial of homeopathic medicine on which words "Mere sd." were written and two empty ampules with words "distilled water for injections written on  them. Those  articles were seized by the Sub  Inspector.   Mahadeo and   Kasim  accused  were  put  under  arrest,  After   the interrogation of Mahadeo accused, on September 1 8, 1963 ASI Birbhadra singh went with Mabadeo accused to a place 644 called Chandi Asthan on the bank of river Ganges and  spread a  net  in the river, but the dead body of  Indira  was  not found  there.  The police party then returned to the  police station.   There  was further interrogation of  Mahadeo  and Kasim  accused.  Early on the morning of September 19,  1963 at  about 5 a.m. ASI Birbhadra Singh accompanied by  Mahadeo and Kasim accused went to Kamarganj Ghat.  A place was  then point ed  by  Mahadeo  accused.   From  that  place  Mahadeo accused brought out of the water the dead body of Indira.  A bag  full of bricks was found tied to the waist of the  dead body.  ASI Birbhadra Singh then prepared the inquest reports and took into possession the bag filled with bricks. Post mortem examination on the dead body of Indira was  per- formed  by Dr. Hari ghankar Prasad (PW 21) on September  19, 1963  at  4.3O a.m. at sadar Hospital Monghyr.   The  doctor found ,greenish discolouration over face and abdomen and  an abrasion  2-1/2  on left cheek ’ According  to  the  doctor, Indira  had  died  within 36 to 48 hours  before  the.  post mortem examination.  There was no mark of ligature or  wound on  The  neck.   The skull and vertebrae were  found  to  be normal.   Right  lung and left lung  were  found  congested. Heart  was normal and empty.  Liver, spleen and kidney  were "normally   congested".   Bladder  was  normal  and   empty. Viscera  were preserved and sent to the  Chemical  Examiner. According to the report of the Chemical Examiner, no  poison could be detected in the viscera of Indira. Confessional  statement of Mahadeo accused was got  recorded from  Shri B. M. Rastogi magistrate on September  21,  1963. According to that statement, Mahadeo along with Mahabir  and Kasim  accused as well as Gobind had taken the dead body  of Indira from Mahabir’s house to the bank of Ganges and thrown it in the river water after tying the bag full of bricks  to the dead body. Mahabir, Dasrath and Kedar Nath accused absconded after this occurrence.   Mahabir  and Dasrath  accused  surrendered  in court  on  September  30,  1969.   Kedar  accused  too   was

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arrested.  Attempt was also made to arrest Gobind but he was found to be absconding. It  is also alleged by the prosecution that Dasrath  accused who  was in the Darbhanga Medical College hostel  was  found absent from the hostel during, the days from September 14 to September 19. 1963. Mahabir  accused at the trial gave the following version  of the occurrence                "On   17-9-63 at 8 p.m., she  (Indira)  died.               About  1-2  1/2  months  before  it,  she  was               seriously  suffering from stomach trouble  and               there was no hope for her life. 645               Baijnath lived at my house for four days  and               attended  her.  Letter (Ext.  B / 1) is  proof               thereof.   Four  days be-fore her  death,  she               suffered  from ordinary Influenza and she  was               under my treatment.  On 17-9-63 in the morning               there  was  remission of her fever.   On  that               date  at  about 7.45 p.m. I came  back  to  my               house, and asked Indira’s condition.  My  wife               told me that she was quite well for the  whole               day and that she was not feeling well for  the               last  5  to  7  minutes.   Thereafter  I  went               inside.   On enquiry Indira told that she  was               not  feeling well.  Then I began to  feel  her               pulse.  All of a sudden she had convulsion and               she  died within 4 seconds.  I could  not  un-               derstand  as  to  what was the  cause  of  her               death.   I am myself a doctor.  There  was  no               necessity of beating drums (spreading news) as               to her illness." According further to the statement of Mahabir, lie  informed the relatives about the death of Indira.  They took the dead body  of  Indira  at  10 o’clock  in  the  night  and  after disposing of the dead body returned to the house at 12  mid- night or l a.m. Jitan Mandal, Thakur Mandal and Mahadeo went with  Mahabir  when  the dead body was  put  in  the  river. Mahabir further stated :               "I do not know Gobind.  After disposal of  the               dead  body, we came back to our house  between               12 O’clock and 10’clock in the night,  Mahadeo               put the bag full of bricks on the taxi.  It is               our  custom either to burn or drown  the  dead               body,  but specialty young girls are cent  per               cent  drowned because  while  burning,   the               clothes  are burnt and the dead  body  becomes               naked.  Hence after putting fire in the  mouth               of  the dead body of a young girl the same  is               generally drowned.  For drowning the dead body               some  heavy burden is, tied, so that the  dead               body might not float, and nobody might see  it               and dog or jackal might not eat." Mahabir  denied having met Bhai Lal in Calcutta  and  having told  him that he (Mahabir) would give a fatal injection  to Indira.  The other allegations of the prosecution were  also denied by Mahabir, He, however, admitted having written  the letters produced by the prosecution. Dasrath  accused in his statement under section 342  of  the Code  of Criminal Procedure stated that he was at  Darbhanga during  the days of the present occurrence, and was  staying at  the  house of a close relative, Shri Ram  Lakhan  Bhagat Advocate,,  because  the  eldest  son  of  Shri  Bhagat  was suffering from typhoid and there was no other male member to attend  upon  him.   The plea of Kasim  accused  was  denial

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simpliciter. 13-L1031 Sun.CI/72 646 Mahadeo accused in the course of his statement under section 342  of  the Code of Criminal Procedure stated  that  Indira died  at about 8 p.m. and later on that night,  Mahadeo  was awakened by Mahabir accused.  Mahadeo added               "At 8 O’clock in the night after the death  of               Indira,  Dr.  Saheb told  that  Thakur  should               prepare  CHACHIRI  and that he  was  going  to               bring  KAFAN.  Ladies were weeping inside  the               house.   Gobind was not there.  It  was  rainy               season.  At the instance of Dr. Saheb,  Thakur               and  myself kept bricks in a gunny bag,.   Dr.               Saheb went to ask 10 or 15 persons to go  with               the  dead body.  When he came after saying  to               them,  it began to rain.. At the  instance  of               other  persons,  Dr. Saheb went to  bring  two               taxis  but only one taxi could  be  available.               For want of accommodation in the taxi, 1,  Dr.               Saheb, Thakur and Jitan took the dead body  on               the taxi and remaining persons could not go." Mahadeo  admitted having thrown the dead body in the  river. Written statement was also filed on behalf of Mahabir. The trial Court came to the conclusion that the  possibility of  the death of Indira due to morphine injection could  not be ruled out.  It was held that Mahabir and Dasrath  accused had conspired to kill Indira by administering poison, or  at any  rate,  Dasrath accused had connived at the,  murder  of Indira by Mahabir accused Both of them were further held  to have  conspired to dispose of the dead body secretly with  a view  to screen themselves from legal  punishment.   Mahabir and Dasrath accused were accordingly convicted and sentenced as above.  Kedar accused was given the benefit of doubt  and was  acquitted.  As regards Mahadeo and Kasini  accused,  it was held that though they had joined in the disposal of  the dead body, they were not parties to the conspiracy to murder Indira.’  These  two accused were, however,  found  to  have conspired  to dispose of Indira’s dead body with a  view  to screen Mahabir and Dasratli accused from legal punishment of murder.    Mahadeo  and  Kasim  accused   were   accordingly convicted  for offences under sections 120B and  201  Indian Penal Code. On appeal the High Court found that the following facts  had been proved:               "(1)  Appellant Dasrath was not keen  to  have               the  DURAGAMAN ceremony performed  even  after               more  than four years of his marriage and  was               putting  pressure  on Indira’s father  to  pay               the promised sum of Rs. 2500/-to him  although               in  fact  there was no such promise  from  his               father-in-law. 647               (2)  Dasrath had in the meantime come in  some               sort  of  close intimacy with a  girl  medical               student  of Kanpur, named,  Madhuri  Chourasia               and was on correspondence with her.               (3)  Deceased Indira was suspected by  Dasrath               and  by his father and step mother of  illicit               intimacy with Rajendra when she came in  Aswin               in  1962 to stay at Mahabir’s place  and  they               decided  to abandon her at her father’s  place               never to be called back again.               (4)  On the asking of Dasrath and Mahabir  the               father of Indira brought her back to his place

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             in December, 1962.               (5) Indira was not asked to join her husband’s               family  on  the  occasion  of  the  TILAK   of               Mahabir’s  daughter and third son Mahendra  in               May, 1963.               (6)  Baijnath  went uninvited with  Indira  to               Nayagaon on that occasion and he was  insulted               by  Mahabir and Dasrath; but  still  Baijnatli               left  Indira  there  and  returned  alone   to               Surajgarh.               (7)  Mahabir  immediately wrote  a  post  card               (Ext.  1/3) expressing his  acute  bitterness,                             disgust   and  hatred  for  Baijnath and   his               daughter.               (8)  On 7th August, 1963 Mahabir in,  Calcutta               had talks with Bhailal an uncle of Indira  and               Mahabir conveyed to him his idea of  injecting               Indira to death within a month if she was  not               removed by ’her father from his place.               (9)  Dirty allegations were made  against  her               character  and  she was described  by  Mahabir               before Bhailal as cobra.               (10) Bhailal immediately conveyed to  Baijnath               the  gist  of  the conversation  he  had  with               Mahabir by letter Ext. 114 by dated 8-8-1963.               (11)  Mahabir  on  his  own  admission  before               Bhailal was  already  giving  injections  to               Indira to relieve her of some stomach pain.               (12)  Suddenly  Indira died on  the  night  of               17-9-1963.               (13) No relation or neighbour at Nayagaon came               to know of her deaths on that evening.               (14)  The father of the deceased girl was  not               informed  .about the death although  Surajgarh               was not very far 648               and there was undue hot haste in disposing  of               the body on the very night of her death.               (15) The dead body was stealthily carried away               by  Mahabir and his three  servants  including               Qasim  Ansari on a taxi at dead of  night  and               was sunk unceremoniously in Kamarganj Ghat  21               miles away although the nearer burning ghat or               bank  of  the  Ganges was at  Lal  Darwaza  ox               Chandi  Asthan  at Monghyr, only five  to  six               miles away from Jamalpur.               (16)  The body was not cremated  according  to               custom.               (17)  Rumour about surreptitious  disposal  of               the dead body was reported at Jamalpur  Police               Station and enquity was at once started by the               thana officer on the morning of 18-9-1963  and               Mahadeo  and  Quasim  Ansari  made  discrepant               statements  about the, death and  disposal  of               the dead body on interrogation.               (18) Mahabir and also Dasrath (who was seen at               Jamalpur   on   the  morning   of   18-9-1963)               absconded  and remained traceless  till  30-9-               1963.               (19)  Mahadeo misled the police  in  searching               out  the  dead body in the evening  at  Chandi               Asthan on 18-9-1963 and later on a  subsequent                             clue furnished by him the police party  came  to

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             Kamarganj  Ghat  and recovered the  dead  body               from the river bed.               (20)  Upon  post mortem examination heart  was               found  empty  and normal and it  excluded  the               possibility of natural deathdue to- syncope               or vagal inhibition.               (21)  Dasrath  was absent from his  hostel  at               Darbhanga from 14-9-1963 and again from  23-9-               1963  till  30-9-1963 when he and  his  father               Mahabir surrendered in court.               (22)  The  plea of alibi of  Dasrath  remained               unsubstantiated." In the result, the conviction of the accused-appellants  was upheld and their appeal was dismissed. In  appeal  in  this  Court  Mr.  Chari  on  behalf  of  the appellants  has argued that the material on record does  not establish  that Mahabir accused caused the death  of  Indira deceased.  In any case, according to the learned counsel, it has  not been proved that the death of Indira was  homicidal and  not natural.  So far as Dasrath accused  is  concerned, the  submission made is that there is no cogent evidence  on the record to show that he was present at 649 his  house  in  Jamalpur on the  night  of  occurrence.   As regards  Kasim accused, the counsel contends that he is  not proved to have taken part in the removal of the dead body of Indira  from the house of Mahabir.  In respect  of  Mahadeo, the  argument is that he did not know that Indira  had  been murdered.   The above contentions have been controverted  by Mr. Prasad on behalf of the respondent State.  We have heard the arguments at length and shall now proceed to examine  as to  whether the prosecution has been able to  establish  the charge against the accused and if so, against which of them. We  may first take the case of Mahabir accused.  It  is  the case  of  the prosecution that Mahabir had an  aversion  for Indira  deceased and suspected her of illicit intimacy  with his  second son Rajendra.  Indira was consequently  sent  to her  father’s  house.   The above facts are  proved  by  the evidence  of Baijnath (PW 2) and are corroborated by  letter dated  July 6, 1962 sent by Dasrath accused to Baijnath  PW. The evidence of Baijnath PW further shows that after  Indira had  been  brought to his house in December  1962,  Baijnath made  many efforts to send Indira to the house  of  Mababir, but Mahabir declined to, keep her in his house.  In May 1963 the  marriage,  of Mahandra and Tilak ceremony  of  Mahabies eldest daughter were to be performed.  Mahabir did not  send for  Indira  on the occasion of the  above  Tilak  ceremony. Baijnath on coming to know of the Tilak ceremony  personally took  Indira with him to Mahabir’s house.  Mahabir  resented the  act of Baijnath in bringing Indira to his house on  the above  occasion  and  made no  secret  of  his  resentmnent. Baijnath  all the same left Indira at Mahabir’s house  under the  belief  that the anger of Mahabir would  subside.   The fact that Mahabir became angry because of Indira having been brought  to  his house by Baijnath on the  occasion  of  the above  Tilak  ceremony is admitted by Mahabir  also  in  his statement  under  section  342  of  the  Code  of   Criminal Procedure. After  the  Tilak  ceremony of  Mahabir’s  daughter,  Indira continued  to  stay  at  the  house  of  Mahabir.   Mahabir, however,  did  not  feel  happy  over  this.   Mahabir  also suspected that some people had set fire to his house on  the occasion of the marriage of his daughter at the  instigation of  Baijnath.   On June 7, 1963 Mahabir wrote  a  letter  to Baijnath in the course of which Mahabir stated

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             "So far your daughter is living peacefully but               you,  who  have  kept  your  daughter   (here)               secretly have done a great harm.  You who have               done this act in collusion with my enemies and               you  have  thought that it would be  for  your               good.   Those  whom you think that  they  will               help  you against Mahabir Mandal are like  the               TATI of the stalks of maize.  You should  know               that  there is man of brain on this side  also               to burn the action which you take. 650               Hence  you should come as soon as you  receive               the letter and have a face to face talk.  Your               daughter can live or go only after  settlement               made in the talk.  You should not hesitate  in               coming  (here)  I shall not  quarrel.   What-,               ever  action will have to, be taken,  will  be               taken  with  brain.  If you do  not  come  its               result will be bad." The writing of the above letter has been admitted by Mahabir in  his statement under section 342 of the Code of  Criminal Procedure.   The letter shows that Mahabir was not  prepared to keep Indira at his house unless some amends were made  by her father. The  evidence  of  Bhai Lal (PW 18), who,  is  a  cousin  of Baijanath  PW and runs hotel business, shows that on  August 7, 1963 Mahabir went to the witness in Calcutta and told the witness  to request Baijnath to take his daughter  from  the house of Mahabir as Mahabir did not like to keeps her in his house.   Mahabir  also  added at that  time  that  Baijnaths daughter  was having illicit intimacy with the other son  of Mababir  and  this would create complication in  the  family when the sons of Mahabir came, during vacation to the house. Mahabir  even went to the extent of describing the  daughter of  Baijnath as a cobra in the house.  According further  to Bhai  Lal, Mahabir held out a threat while leaving  that  if Baijnath  did not agree to take back his daughter, he  would give  some fatal injection to Indira.  On the following  day Bhai Lal sent a letter narrating the above facts to Baijnath As some money was, also being sent along with that letter by Bhai Lal to Baijnath, the letter and the money were, sent in an insured cover.  The evidence, of Bhai Lal in this respect is  corroborated by that of Baijnath PW to whom  the  letter was  sent.   Baijath also referred to the  above  threat  of Mababir  conveyed through Bhailal in the  first  information report.   Both the trial court and the High  Court  accepted the  prosecution  evidence in this respect and  nothing  has been  urged in this Court as may Justify  interference  with the above appraisement of evidence. It is a common case of the prosecution and the defence  that Indira  died suddenly in Mahabir’s house in his presence  on the night between September 17 and September 18, 1963.   The evidence  of  Baijnath shows that no  intimation  about  the death of Indira was, sent to him.  Mahabir accused later  on that night arranged a taxi. and with the help of Mahadeo and others placed the dead body in the taxi.  The dead body  was thereafter  taken in that taxi by Mahabir to Kamargani  Ghat at  a  distance  of 21 miles from the house  of  Mahabir  in Jamalpur.   A  bag full of bricks was also  carried  in  the taxi.  The dead body of Indira was then thrown into  chest- deep  water of the Ganges after the bag full of  bricks  had been  tied  to  the waist.  The above  facts  are  also  not disputed 651 by  Mahabir.  According to him, they took the dead  body  at

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about 10 p.m. and after the body was thrown into the  Ganges they returned at about mid-night or 1 a.m. After report had been lodged by Baijnath with the police  on the  following  day, that, is, September  18,  1963  Mahabir accused  was found to be absconding and was not traced  till he surrendered himself in court in September 30, 1963. The dead body of Indira could not be recovered on  September 18, 1963 and was recovered only on the morning of  September 19,  1963  after the particular spot at Kamarganj  Ghat  had been pointed by Mahadeo accused. Post mortem examination on the dead body of Indira  deceased was  performed  by  Dr.  Hari  Shanker  Prasad.   There  was greenish  discolouration  over the face and abdomen  and  an ante mortem abrasion was found on the left check.  Eyes were protruding   and  corneas  were  hazy.   Decomposition   had started,  and according to the doctor, the time between  the death and post mortem examination was 36 to; 48 hours.  Both the  lungs  were found congested.  Heart, according  to  the doctor, was normal and empty, while liver, spleen and kidney were "normal congested’. The  above circumstances, in our opinion, clearly  point  to the conclusion that Mahabir accused was responsible for  the death  of  Indira.   It is no doubt true that  there  is  no ocular evidence in this case regarding the commission of the crime   but  the  chain  of  different   circumstances   are consistent only with the hypothesis of the guilt of Mahabir. Mahabir was not only inimically disposed towards Indira,  he had  also held out a threat that if she was not taken  from his  house  he, would administer an injection to  her  as  a result of which she would die.  The conduct of Mahabir after he  death of Indira at a time when according to him, he  was feeling  her pulse speaks volumes of his guilty  conscience. Had Indira’s death been natural and not the result of  foul- play, there was no reason as to why Mahabir should not  have immediately informed her father of her death.  According  to Mahabir,  he  sent  a post card to Indira’s  father  on  the following, day.  No question on that score, however, was put to  Indira’s father Baijnath when he came into witness  box. The  act of Mahabir in arranging for a taxi and  taking  the dead  body  of  Indira  at the dead hour  of  the  night  to Kamarganj  Ghat at a distance of 21 miles clearly  indicates his desire to surreptitiously remove the dead body and throw it  at a place from which it would not be recovered.  It  is significant  in this connection to observe, that Monghyr  is at a distance of only five or six miles from Jamalpur  while Lal Darwaza burning ghat is at a distance of nine miles from Jamalpur.  Both Lal Darwaza burning ghat and Monghyr are  on river bank.  The fact that the dead body 652 was  taken to a much more distant place like Kamarganj  Ghat which   is 21 miles away tends to show that  Mahabir  wanted that the place where the dead body was thrown should not get known to others.  The tying of bag containing bricks to  the dead  body betrays further anxiety to prevent  the  floating and consequent detection of the dead body. According  to the defence version, Dasrath accused,  who  is husband of Indira, was not present in Nayagaon and was  away to  Darbhanga at the time of the death of  Indira.   Dasrath even was not sent for before the dead body was disposed  of. The  stealthy removal of the dead body of Indira at  a  late hour of the night and the undue haste with which the body of Indira  was  thrown in the river at a distance of  21  miles from Nayagaon is a gravely incriminating circumstance and no plausible explanation has been furnished by Mahabir for this abnormal conduct.

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As  regards  the  contention that the death  of  Indira  was natural  and not homicidal, we have already mentioned  above that  both her lungs were found to be congested.  Heart  was normal  and. empty.  Dr. Prasad (PW 21), who  performed  the post  mortem  examination  on the dead  body,  was  declared hostile on the request of the public prosecutor.  In  answer to  a further question, Dr. Prasad stated that the death  of Indira  might have been a normal death Dr. Prasad ruled  out an  asphyxial death or death by morphine poisoning  because, according  to  him, there was no indication of  any  of  the following characteristics which are to be found in the  case of such a death :               "(a)  Right lung is full of blood and left  is               empty.               (b)   Lividity of faces, fingers and nails.               (c)   Congestion of the brain.               (d)   Froth or blood froth in the trachea,               (e)   Punctiform ecchymosis in the lungs  with               congestion of lungs." The  prosecution also examined Dr. Kamleshwar  Singh  police surgeon (PW 24).  According to this witness, he perused  the post mortem report and the Chemical Examiner’s report.   The witness  added : "In my view I cannot form any  opinion  for the  cause  of death except that death had resulted  due  to respiratory  failure.   Asphyxia is the technical  term  for respiratory failure.  Poisoning may be one of the causes  of respiratory failure".  Dr. Kamleshwar H Singh expressed  his agreement  with Dr. Prasad regarding the characteristics  of asphyxial death. 653 The  trial  court  and the High Court in the  light  of  the evidence  on record, were of the opinion that the  death  of Indira  by  morphine  poisoning  could  not  be  ruled  out. According  to  Taylor’s Principles and Practice  of  Medical Jurisprudence,  vol.  II, Twelfth Edition, page 199,  poison can be administered not only orally but also  hypodermically or intravascularly with the help of a syringe.  As there was no  eye witness of the occurrence, the court should not,  in our opinion, insist upon evidence regarding the exact manner in which the death of Indira was caused.  It has to be borne in mind in this context that Mahabir accused was responsible for the removal of the dead body immediately after the death of  Indira and the same remaind submerged in water for  more than  24  hours’  The  above  conduct  of  Mahabir   accused prevented prompt post mortem examination on the dead body of Indira.  On the material it can be said that there were some features like the congestion of both the lungs, the  kidney, the  liver and the spleen of Indira which, according to  Dr. Kameshwar  Singh,  were indicative of death  by  respiratory failure and the same could be caused by poisoning.  The fact that  the heart of the deceased at the time of  post  mortem examination  was  found  to  be empty  would  not  rule  out asphyxial  death  as a result of  poisoning.   According  to observations on page 125 of Modi’s Medical Jurisprudence and Toxicology.  Seventeenth Edition, in many cases of asphyxial deaths both the 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.  Reference has been made  by Mr. Chari to report dated December 23, 1963 of  the Chemical  Examiner,  according to whom no  poison  could  be detected   in   the  viscera  of  Indira   deceased.    This circumstance would not, in our opinion, militate against the conclusion  that  the  death  of the  deceased  was  due  to poisoning.   There are several poisons, particularly of  the synthetic  hypnotics and vegetable alkaloids groups,  which

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do  not leave any characteristic signs as can be noticed  on post  mortem examination.  We may in this context  refer  to the  following  observations on page 477 of the  above  men- tioned book by Modi:               "It  is quite possible that a person  may  die               from the effects of a poison, and yet none may               be found in the body after death, if the whole               of  the poison has disappeared from the  lungs               by  evaporation, or has been removed from  the               stomach   and  intestines  by   vomiting   and               purging,   and  after  absorption   has   been               detoxified, conjugated and eliminated from the               system  by  the kidneys and  other.  channels.               Certain vegetable poisons may not be  detected               in  the  viscera,  as they  have  no  reliable               tests, while some organic poisons,  especially               the   alkaloids   and  glucosides,   may,   by                             oxidation during life or by putrefacti on  after               death, be split up into other substances which               have no 654               characteristic reactions sufficient for  their               identification." Similar view has been expressed by Lambert in his book  "The Medico-Legal  Post  Mortem in India".  We may also  in  this context  refer  to the book "Legal  Medicine  Pathology  and Toxicology" by Conzales and others, Second Edition,  wherein it is. stated on page 847               "The   postmortem  appearances  in  cases   of               morphine   poisoning  are   not   particularly               characteristic.  There is a congestion of  the               viscera,  cyanosis  and  abundant  dark  fluid               blood.  When crude opium is taken by mouth the               stomach  may contain fragments of  poppy,  but               nothing  characteristic is found if  morphine,               is ingested." The  circumstances  of  the  present  case  taken  in  their entirety  clearly point to the conclusion that the death  of Indira  was  not  natural but was due to  foul-play.   In  a number  of  cases  where the deceased dies as  a  result  of poisoning,  it  is  difficult to  successfully  isolate  the poison and recognize it.  Lack of positive evidence in  this respect  would  not  result  in  throwing  out  the   entire prosecution case if the other circumstances clearly point to the guilt of the accused.  Reference in this context may  be made to the following observations of Hidayatullah J. (as he then  was) who spoke for the majority in the case  of  Anant Chintaman Lagu v. The State of Bombay(1)               "A case of murder by administration of  poison               is almost always one of secrecy.  The poisoner               seldom takes another into his confidence,  and               his  preparations  to the  commission  of  the               offence  are  also  secret.   He  watches  his               opportunity  and administers the poison  in  a               manner  calculated  to. avoid  its  detection.               The  greater  his knowledge  of  poisons,  the               greater  the  secrecy,  and  consequently  the               greater  the  difficulty of proving  the  case               against him.  What assistance a man of science               can  give he gives, but it is too much to  say               that  the  guilt of the accused must,  in  all               cases, be demonstrated by the isolation of the               poison,  though  in  a  case  where  there  is               nothing else such a course would be  incumbent

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             upon  the  prosecution.   There  are   various               factors  which militate against  a  successful               isolation  of the poison and its  recognition.               The  discovery  of the poison  can  only  take               place either through a post mortem examination               of   the  internal  organs  or   by   chemical               analysis.   Often enough, the diagnosis  of  a               poison  is aided by the information which  may               be  furnished by relatives and friends  as  to               the  symptoms  found on the  victini.  if  the                             course of poison has taken long and ot hers (1) [1960] 2 S.C.R. 655               have  had  an  opportunity  of   watching  its               effect.    Where,  however,  the   poison   is               administered  in  secrecy and  the  victim  is               rendered  unconscious  effectively,  there  is               nothing to show how the deterioration in  the,               condition of the victim took- place and if not               poison but disease is suspected, the diagnosis               of poisoning may be rendered difficult." Reliance  in the above context was placed in the cited  case on  the books on medical jurisprudence by different  authors wherein  it has been stated that the pathologist’s  part  in the  diagnosis  of poisoning is secondary and  that  several poisons   particularly  of  the  synthetics  hypnotics   and vegetable  alkalodis groups do not leave any  characteristic signs which can be noticed on post mortem. examination.  The following dictum was laid down in the case:               "The  cases of this Court which were  decided,               proceeded upon their own facts, and though the               three  propositions  must  be  kept  in   mind               always,  the  sufficiency  of  the   evidence,               direct or circumstantial, to establish  murder               by poisoning will depend on the facts of  each               case.   If the evidence in a  particular  case               does not justify the. inference that death  is               the result of poisoning because of the failure               of the prosecution to prove the fact satisfac-               torily,  either directly or by  circumstantial               evidence,  then the benefit of the doubt  will               have  to be given to the accused person.   But               if circumstantial evidence, in the absence  of               direct  proof  of the three  elements,  is  so               decisive  that  the Court  can  unhesitatingly               hold that death was a result of administration               of  poison (though not detected) and that  the               poison  must  have been  administered  by  the               accused  person,  then the conviction  can  be               rested on it." The case against Mahabir accused, in our opinion, is covered by the latter part of the above observation.  We, therefore, find no cogent ground to interfere with the findings of  the two  courts that the death of the deceased was  not  natural but homicidal. Reference  has been made by Mr. Chari to the case  of  State Government,  Madhya Pradesh v. Ramkrishna  Ganpatrao  Limsey and Ors. (1) wherein this Court dealt with an appeal against acquittal and observed that the exercise: of extra-,ordinary jurisdiction  under Article 136 of the Constitution  is  not justifiable in criminal cases unless exceptional and special circumstances  are  shown to exist or that  substantial  and grave  injustice has been done.  The above observations  are hardly  of  any  assistance, to the  appellant.   The  other

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observation  in  that case relating to  speculation  in  the absence of any material were made in the light of the  facts of that (1) A.I.R. 1954 S.C. 20. 656 case  and as there is no parallel between the facts  of  the two cases, not much help can be derived from the cited case. The  suggestion  put  forth on behalf of  the  accused  that Indira ,deceased might have died due to vagal inhibition  as a  result  of  menstural  trouble  or  diarrhoea  cannot  be accepted.   Had the death of Indira been natural because  of some sudden disease and not homicidal, Mahabir accused would not  have  acted  in  the manner he  did  for  the  stealthy disposal  of, the dead body at night by throwing it  in  the river  at  a far off place without informing her  father  or even  his own son about the death.  The entire  conduct  .of Mahabir  is  inexplicable  On any  rational  ground  and  is consistent only with his guilt. We may now deal with the case of Dasrath accused.  According to the prosecution case, Dasrath was present in his house in Jamalpur on the night of occurrence.  Dasrath, however,  has ,denied  this allegation and has stated that he was away  to Darbhanga during those days.  There is no reliable  evidence to  show that Dasrath was present in the house on the  night in question.  Reliance has been placed by the prosecution on the  testimony of Shiban Mandal (PW 8) and  Mushahru  Mandal (PW  15) who .have deposed that they saw Dasrath  reading  a book  near the dispensary room of his house on the  morning of September 18, 1963.  Both these witnesses are related  to each  other.   Shiban  ,did not make any  statement  to  the police  till September 22, 1963.  The fact that Shiban  kept quiet  for four days and made statement to the police  after four  days would show that not much reliance can  be  placed upon his testimony.  Mushahru on his own testimony has  been involved  in  litigation with Mahabir,  father  of  Dasrath. Mahabir  also got the house of Mushahru attached in  a  suit filed against him.  As such, it is not safe to rely upon the testimony of Mushahru also. It  may  be mentioned that, according  to  the  confessional statement  of  Mahadeo, which was recorded by  Shri  Rastogi magistrate on September 21, 1963 and upon which reliance was placed  by the prosecution, no one was present in the  house when Mahabir took Mahadeo inside the house to bring out  the dead  body  of Indira for being placed in the taxi  on  the, night of occurrence.  The confessional statement of  Mahadeo thus rules out the presence of Dasrath accused at his  house on the fateful night. The  fact that Dasrath was not marked present in his  hostel from  September  14  till  September  19,  1963  would   not necessarily  show  that  he  was present  in  his  house  in Jamalpur  on the night of September 17, 1963.  According  to Dasrath,  he was in those days staying with a relative  Shri Ram  Lakhan Bhagat Advocate as Shri Bhagat’s son was  having typhoid.  The fact that Dasrath did not 657 adduce evidence in support of his version would not lead  to the conclusion that he was present at his house in  Jamalpur on the night of occurrence. Reference has also been made to some letters between Dasrath and  a girl named Madhuri in order to show  their  intimacy. This  circumstance  would not warrant an  inference  of  the guilt  of Dasrath when the other evidence is not  sufficient to connect him with the crime.  The same remarks would apply to  letter  dated  March 29, 1962  which  Dasrath  wrote  to Baijnath in order to re. mind him of his promise to pay  Rs.

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2,500 for further education to Dasrath.  It may be mentioned that  a subsequent letter dated July 6, 1962 of  Dasrath  to Baijnath  shows  his attachment toward,,;  his  wife  Indira deceased. Coming  to  the  case of Kasim, we find  that  there  is  no reliable evidence as may show that Kasim was present at  the house of Mahabir on the night of occurrence and took part in the  disposal  of  the dead body of  Indira.   Reliance  was placed  by  the prosecution upon the statements  alleged  to have  been made by Kasim and Mahadeo accused at  the  police station  in the presence of Baijnath PW after  Baijnath  had lodged  report at the police station.  Such  statements  are legally  not  admissible in evidence and cannot be  used  as substantive evidence.  According to section 162 of the  Code of Criminal Procedure, no statement made by any person to  a police  officer in the course of an investigation  shall  be signed  by the person making it or used for any  purpose  at any  enquiry  or  trial  in respect  of  any  offence  under investigation at the time when such statement was made.  The only exception to the above rule is mentioned in the proviso to that section.  According to the Proviso, when any witness is  called for the prosecution in the enquiry or trial,  any part  of his statement, if duly proved, may be used  by  the accused  and  with  the  permission  of  the  court  by  the prosecution,  to  contradict  such  witness  in  the  manner provided by section 145 of the Indian Evidence Act and  when any part of such treatement is so used, any part thereof may also  be used in the re-examination of such witness for  the purpose  only  of explaining any matter referred to  in  his cross-examination.    The  above  rule  is,   however,   not applicable  to statements falling within the  provisions  of clause  1  of section 32 of the Indian Evidence  Act  or  to affect the provisions of section 27 of that Act.  It is also well  established that the bar of  inadmissibility  operates not only on statements of witnesses but also on those of the accused [see Narayan Swami v. Emperor, (1)].  Lord Atkin, in that  case, while dealing with section 162 of the,  Code  of Criminal Procedure, observed               "Then follows the Section in question which is               drawn in the same general way relating to "any               person." That (1) [1939] P.C. 47. 658               the  words  in their  ordinary  meaning  would               include any person though he may thereafter be               accused seems plain.  Investigation into crime                             often  includes the examination of a n umber  of               persons  none  of whom or all of whom  may  be               suspected at the time.  The first words of the               Section prohibiting the statement if  recorded               from  being  signed  must  apply  to  all  the               statements made at the time and must therefore               apply  to  a  statement  made  by a   person               possibly  not  then even suspected  but  even-               tually accused." Reference  may  also  be made to section 26  of  the  Indian Evidence  Act, according to which no confession made by  any person  whilst  he is in the custody of  a  police  officer, unless   it  be  made  in.  the  immediate  presence  of   a Magistrate,  shall be proved against such person.  There  is nothing  in  the present case to show  that  the  statements which  were made by Kasim and Mahadeo accused  on  September 18,  1963 at the police station in the presence of  Baijnath resulted  in the discovery of any incriminating material  as

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may  make  them admissible, under section 27 of  the  Indian Evidence Act.  As such, the aforesaid statements must be ex- cluded from consideration. We,  therefore,  axe of the opinion that no  case  has  been proved against Dasrath and Kasim accused. As  regards Mahadeo accused, we find that it is the case  of the  prosecution and this fact is also admitted  by  Mahadeo accused  in his statement under section 342 of the  Code  of Criminal Procedure that he was one of those who carried  the dead  body of Indira from the house of Mahabir to  the  taxi and  thereafter  went  with the dead body  in  the  taxi  to Kamarganj Ghat.  The dead body also thrown in the Ganges  by Mahadeo.   Mahadeo  further admits that he pointed  out  the dead  body to the police and brought it out of  the  Ganges. The  circumstances in which the death of Indira  took  place and  the  surreptitious manner in which ’her dead  body  was removed  at dead of night from Mahabir’s house to  Kamarganj Ghat  go  to show that Mahadeo was not unaware of  the  fact that  Indira’s death was not natural and had been  brought about  by  Mahabir.   Mahadeo, in  the  circumstances,  ,was rightly convicted for offence under section 201 Indian Penal code  for causing the disappearance of the dead body with  a view to screen the murderer from legal punishments As  both Dasrath and Kasim are being acquitted,  the  charge under  section  120B Indian Penal Code against  Mahabir  for conspiracy with Dasrath to murder Indira and against Mahadeo for conspiracy with Kasim for causing disappearance of  dead body ,of Indira must fail. 659 The  result is that appeal of Dasrath and Kasim is  allowed. Their  conviction is set aside and they are acquitted.   The conviction of Mahabir and Mahadeo for offences under section 120B  Indian  Penal Code is set aside.   The  conviction  of Mahabir for offences under sections 302 and 201 Indian Penal Code  as well as the sentence on that scare  is  maintained. Likewise, the conviction and sentence of Mahadeo for offence under  section  201 Indian Penal Code  is  maintained.   The appeal of Mahabir and Mahadeo to this extent is dismissed. S.C.                        Appeal dismissed. 660