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CASE NO.: Appeal (crl.)  298 of 1997

PETITIONER: Narendra Singh & Anr.

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 12/04/2004

BENCH: Y.K. Sabharwal & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

                        The Appellant No. 1 herein by reason of the impugned  judgment reversing a judgment of acquittal passed by learned  Sessions Judge, Dhar on 6.1.1984 was found guilty of  commission of an offence under Section 302 of the Indian  Penal Code for having committed murder of Bimlabai by  throttling on 6.5.1983 at about 5.30 p.m. at Dhanmandi, Dhar  at house No. 16, Dhanmandi, Dhar as also under Section 201  of Indian Penal Code for causing disappearance of evidence  by setting her on fire after causing her death; whereas the  appellant No. 2 was found guilty of commission of an offence  under Section 201 of the Indian Penal Code  

       The relationship between the appellants herein are son  and mother.  Along with them, the husband of appellant No. 2  Hari Singh and their daughter Kusum were chargesheeted for  commission of murder of the aforementioned Bimlabai. The deceased Bimlabai was married to the appellant No.  1 herein on or about 21.4.1982 in relation whereto the  betrothal ceremony was held in December, 1980.  The  appellant No. 1 after the said betrothal ceremony was  appointed as a bus conductor by the Madhya Pradesh State  Road Transport Corporation.  About 4 and = months  thereafter, he was suspended questioning which he filed a  civil suit.   

At the relevant time, the family members of the  appellants were living as tenants in a portion in the upper  storey of the house of Bansidhar, P.W.1.  Daulatram, another  tenant, used to reside in the front portion in the first  storey in the same house.  One Moi Babu was a tenant on the  front portion in the ground floor whereas Omprakash Shukla  was tenant in the rear portion thereof.

       Allegedly a demand was made by the accused persons for  a wrist watch and a chain of gold at the time of marriage to  which Ramsingh, PW5 (brother of the deceased) expressed his  inability.  Sometimes later, the said demand was reiterated.   The appellant No. 1 was eventually dismissed from services  whereafter financial assistance was allegedly given to him  by Ram Singh.  The marriage of younger brother of Ramsingh,  Rajendra was settled in December, 1982.  His Tika ceremony  was to take place on 24.4.1983 at Indore.  Ramsingh came to  the house of the accused persons to invite them and take  Bimla with him to his house.  For the purpose of fighting

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out a suit as regard the termination of his service,  Narendra allegedly asked for a sum of Rs. 2000/- from  Ramsingh wherefor he expressed his inability saying as his  brother is going to be married after one month he was not in  a position to spare the amount.  Allegedly, thereupon  Narendrasingh and Harisingh threatened stating "You will  have to give us an amount of Rs. 2000/- otherwise we will  not send Bimla to attend the marriage ceremony of her  brother Raju at Indore."

       The incident in question took place on 6.5.1983.  It is  alleged that on 6.5.1983 at about 5 p.m. Asha, PW7 (daughter  of Daulatram) saw signs of fire coming out from the house  occupied by the accused persons.  PW2 Ramkunwar Bai also  noticed the fire.  They gave a call to the appellants but  none replied.  PW-10 Kusha Bhau and others also went to the  house to extinguish fire. Thereafter the fire brigade as  also the police reached at the place of occurrence.  The  dead body of Bimlabai  was found lying in the kitchen of the  house in burnt condition.  A jerry can, its cover and a  match box were also found near the dead body in the kitchen.   The autopsy on the dead body of Bimlabai was conducted at  about 8.15 p.m. on 7.5.1983.  

Ram Singh, the informant came to learn about the said  incident on the next day.  In relation to the said incident  a First Information Report was lodged by Ram Singh PW-5 at  6.30 p.m. on 7.5.1983 in the Police Station Dhar.  The  appellants herein with Harisingh and Kusum were  chargesheeted under Sections 302 and 201 read with Section  34 of the Indian Penal Code.  The case thereafter was  committed to the Court of Sessions.  Before the learned  Sessions Judge, 17 witnesses were examined on behalf of the  prosecution; whereas 6 persons were examined as court  witnesses.  A plea of alibi was put forth by the appellants  herein in the trial stating that the appellant No. 1 was  attending a marriage ceremony in the house of Illias Khan,  CW-3.  The appellant No. 2 also raised a plea of alibi.   

PW-1 Banshidhar is the owner of the house.  PW-2  Ramkunwar Bai is an adjacent neighbour of the appellants.   PW-3 Harak Chand Mittal is an advocate, who lives at some  distance from the house of accused persons, had informed the  police about fire on phone.  PW-4 Om Prakash is also a  neighbour.  He was a witness to the inquest report, site  plan and seizure memo.  PW-5 Ramsingh is the first  informant.  PW-6 and CW-1 are the doctors who conducted the  post mortem examination over  the dead body of Bimlabai.   PW-7 Asha, PW-10 Kusha Bhau, PW-13 Yashoda Bai, PW-14 Gulab  Singh are the other witnesses.  PW-12 Bhagwanti Bai is the  sister of the deceased.  The court witnesses were not  examined by the prosecution and all of them for some reason  or the other were examined as court witnesses.  CW2 to CW6  sought to prove the plea of alibi of the appellants.

       The Learned Sessions Judge disbelieved the prosecution  case and recorded a judgment of acquittal inter alia on the  ground that as admittedly the door of the kitchen had to be  broken open; and as the death of Bimlabai presumably took  place in between 4.15 p.m. and 5.30 p.m., it was impossible  for the assassin to jump from the window in the lane.   Furthermore, as no person has seen the assassin, possibly it  was a case of suicide.  Assuming that it was a case of

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murder, the learned Sessions Judge wondered, keeping in view  the place of occurrence vis-‘-vis the points of possible  entries thereto, as to how the assassin of Bimla made his  exodus from that room.          The learned Sessions Judge did not fully rely upon the  post mortem report having regard to certain cuttings and  over-writings therein.  The learned Sessions Judge opined  that although no mala fide intention could be attributed to  the doctors, there existed a possibility that they committed  some mistakes in recording their opinion as regard the cause  of death.  It was further held that the plea of alibi of the  accused persons could neither be ignored nor said to be  unreliable.

       The learned Sessions Judge also disbelieved the  evidence of PW-1 Bansidhar holding that from his evidence  the presence of the appellants at the place of occurrence at  the relevant time had not been proved.

       The State preferred an appeal thereagainst.  The said  appeal was heard by a Division Bench of the High Court  comprising Justice A.B. Qureshi and Justice V.D. Gyani.   Whereas Qureshi, J. despite holding that the death was  homicidal in nature, was of the opinion that the guilt of  the accused persons was not brought home; whereas Gyani, J.  allowed the State appeal holding the appellants guilty under  Sections 302/34 and Section 201 of the Indian Penal Code and  sentenced them to undergo life imprisonment.  In view of the  difference of opinion the matter was assigned to Chitre, J.  by the Chief Justice of the High Court.  By reason of the  impugned judgment dated 20th September, 1996 aggreeing  with the judgment of Gyani, J. the learned Judge held the  appellant No. 1 to be guilty for commission of an offence  under Section 302 read with 201 of the Indian Penal Code and  the appellant No. 2 to be guilty for commission of an  offence under Section 201 of the Indian Penal Code and  sentenced her to undergo three years of rigorous  imprisonment.  A judgment of acquittal was recorded in  favour of Harisingh whereas Kusum  was although convicted  for commission of an offence under Section 201 of the Indian  Penal Code but was sentenced to the period already  undergone.  

It was held:

"72. Now, therefore, what comes out in  the case is that:

(i)     there was a demand of dowry  which was not fulfilled.   Narendrasingh was annoyed.   Thus, there was motive for  murder.

(ii)    Vimlabai met homicidal death by  throttling and thereafter was  set to fire.  The setting of  fire must have been with intent  to cause disappearance of  evidence for screening the  offender;

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(iii)   At least three persons, i.e.,  Narendrasingh, Gulbadanbai and  Kusum were present in the house  in the after noon and till the  body was found inside the  kitchen room.  Had the murderer  been anybody else Vimlabai must  have raised alarm.  Persons in  the family including these  accused persons could have also  raised alarm and caused  resistance to such murder;

(iv)    As no alarm was raised by  Vimlabai, this goes to show that  the person (murderer) must have  been close relation of her and  in all probability the husband.   A Hindu wife while assaulted by  her husband would not cause  resistance.  Sometimes even  alarms are not raised unless the  injuries caused are very painful  and serious."

       Mr. Sushil Kumar Jain, learned counsel appearing on  behalf of the appellants inter alia would submit that the  preponderance of evidence not only show that the post mortem  report should not have been relied upon by the High Court  having regard to the fact that the burns have been held to  be ante mortem in nature although the cause of death was  said to be asphyxia.  It was pointed out that the findings  of the High Court to the effect that the death was a  homicidal one by asphyxia was based on two factors:

(i)     no carbon particles were found in the respiratory  tract or the trachea, and (ii)    200 CC blood was found in front of pharynx and in  the part of tracheal and sub-surrounding  subcutaneous tissues.

       The learned counsel would urge that the carbon  particles cannot be seen with open eyes particularly when  there was blood and as such it was necessary to remove the  blood by opening the skull or through legs.  

       The learned counsel would further submit that presence  of accused at the time of death cannot be said to have been  proved by the prosecution as the court witnesses  categorically stated about their presence at the relevant  time at the house of Illias Khan.  It was urged that the  evidences of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7  Asha should not have been relied upon by the High Court as  regard presence of the appellant No. 1 having regard to the  improvement/omission/ contradiction contained in their  statements.  The learned counsel would submit that PW-1 has  been contradicted in material particulars by Inder Dhobi CW- 5 whose presence had not been disputed by the prosecution  witness.  It was pointed out that the statements of the  witnesses examined on behalf of the prosecution were  recorded on the 2nd or 3rd day of the occurrence and thus  the same could not have been relied upon.  Our attention had

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also been drawn to the fact that according to PW-1 himself  he had reached his house about 5.15 p.m. whereafter he went  to latrine and only after his coming out therefrom, he  noticed the fire, washed his hands, climbed on the top of  shed when Nadkar and Inder Dhobi were also present; and in  that view of the matter he cannot be a witness as regard the  first part of the incident as by that time, even the doors  of the kitchen had also been broken open and people had  already arrived in large number.  It was further contended  that it was admitted by PW-1 that he came to know about the  death of Bimlabai from Shri Mittal, which fact also makes  his statement doubtful.  

       As regard the finding of the High Court that Bimlabai  died in between 3.00 p.m. to 5.30 p.m., Mr. Jain would point  out that the evidence of PW-1 Banshidhar, PW-2 Ramkunwar Bai  and PW-7 Asha would categorically show that the incident  must have taken place after 5.00 p.m.  The learned counsel  laid emphasis on the fact that admittedly water in the tap  comes at 5.00 p.m. whereafter only the fire was noticed by  the witnesses examined by the prosecution.   

       The finding of the High Court to the effect that the  appellant No. 1 after commission of the offence locked the  room inside and slipped out of the window, Mr. Jain would  urge, is untenable keeping in view the height of the window,  the size of the room being 5’x 6’ as also the fact that some  people had already gathered near the water tap and, thus, it  would be impossible for anyone to jump from the open space  without being noticed and that too remaining unhurt.    

       A judgment of acquittal without any cogent and  sufficient reasons should not be reversed, Mr. Jain would  argue.

       The learned counsel would further submit that the  prosecution has not been able to prove any motive for  commission of the offence as the prosecution witnesses  accepted that the relationship between the husband and wife  was cordial and only because a sum of Rs. 2000/- was asked  for the same by itself could not be the motive on the part  of the accused persons, for commission of the offence.

       Ms. Vibha Datta Makhija, learned counsel appearing on  behalf of the State, on the other hand, would support the  judgment of the High Court inter alia contending that;  whereas the judgment of the learned Sessions Judge was based  on surmises and conjectures, the High Court assigned  sufficient and cogent reasons for arriving at its findings.   It was pointed out that in a case like the present one, the  Court should consider the matter having regard to three  scenarios in mind, viz.:

(i)     Suicide committed by Bimlabai; (ii)    Murder by intruder; and (iii)   Murder by the accused;         and arriving at a finding upon excluding the one or the  other possibility.            The learned counsel would contend that the deceased was  a young girl and in view of the fact that she must have been  having the same state of mind for more than a year and,

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thus, she was unlikely to commit suicide only because she  was not sent by her in-laws to attend the marriage of her  brother.  In any event, having regard to the presence of   ligature  mark on her neck, commission of suicide by self  strangulation and thereafter setting herself on fire must be  ruled out.

       The learned counsel would contend that commission of  murder of Bimlabai by an intruder is wholly improbable.  It  was pointed out that   PW-2, PW-7, CW-2 and CW-6  categorically stated that the appellant No. 1 was at home at  about 3.00-3.30 p.m.  The learned counsel would contend that  if the appellants and Kusum were present in the house and if  the story that immediately prior to the occurrence the  family was visited by PW-13, it is impossible for an  intruder to come and commit the offence without being  noticed.  The learned counsel would aruge that such an  offence is not possible to be committed without drawing the  attention of others, without any noise and without any  shriek by the victim which are clear pointers to the fact  that throttling of the deceased must have been committed by  somebody who was known to her and had access, and, in that  view of the matter the offender cannot be any other person  but the appellant No. 1.

       Ms. Makhija would contend that demand of dowry, an  unhappy marriage, the threat by the appellant No. 1 and his  father and PW’5’s refusal to give to the accused person the  sum of Rs. 2000/- on demanded by them, establish sufficient  motive for the accused persons to commit the murder of  Bimlabai and then to make the same look like a case of  suicide.  The burn injuries suffered by the appellant No. 2  in hand is also a pointer to the fact, Ms. Makhija would  contend, that she had also taken part in setting fire on the  deceased.   

       It was urged that as the plea of alibi of the  appellants have not been proved and keeping in view the  proximity of time and the place of occurrence and time of  murder, it can safely be presumed that the entire occurrence  took place within 10-15 minutes and it was possible for the  appellant No. 1 to come back from the House of Illias Khan  and upon commission of the crime go back to his house to  show his absence.  Furthermore, the burden of proof when a  plea of alibi has been found to be false lies upon the  accused persons, Ms. Makhija would argue.

       It is a case which, in our considered opinion, requires  a broad based consideration.   

We will proceed on the basis that the death of Bimlabai  was a homicidal one.  We will also assume that the contents  of the post mortem report is correct and, thus, the death of  Bimlabai was caused due to asphyxia.  We may further assume  that the appellants herein have failed to prove their plea  of alibi.  What, however, is baffling to us on the manner in  which the offence is alleged to have been committed.  The  High Court arrived at its findings relying upon the spot map  prepared by learned trial Judge which indicates that there  existed a window in the kitchen without any grill; the  height whereof from the road is said to be 11 ft. holding :

"71. From the map proved by the  prosecution, the site map and the note  prepared on the direction of the Judge

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go to show that there were two places  wherefrom a person in the kitchen and  the side room of kitchen could slip  away; (i) by window which is nearly 10  to 11 feet in height from the ground.  (It is note worthy that it is not a  construction with plain wall upto 11  feet but with residential quarters in  the ground floor and therefore, it was  not impossible to slip away from that  window after commission of murder), and  (ii) the other possibility that the  person who committed murder came out  from the gap between the wall containing  door No. 10 and 12 and the roof which  was probably closed subsequently and,  therefore, marks of new constructions of  the wall above the door upto roof."

       The High Court, therefore, considered the escape of the  assassin of Bimlabai through one of the two gaps as possible  but did not assign any reason as to how the same can be said  to have been established.  Furthermore, it does not appear  that such a case was made out by the prosecution.   Investigation in this behalf does not appear to have been  carried out to show as to whether it was possible for a  person to climb the wall before slipping out of one of the  two places mentioned by the High Court nor any material in  support thereof was brought on record.  The witnesses did  not say that they had seen any foot mark of any person on  the wall nor any other evidence suggests that one of the two  open places would otherwise be used by the offender as  possible escape routes.  If the time of incident is taken to  be nearer 5 p.m. than 3.30 p.m., it would be well nigh  possible for the appellant No. 1 to climb the wall, sneak  through the open places and jump from the window to the lane  without being noticed.  It also does not appear that the  attention of the appellants had been drawn by the Sessions  Judge to any piece of evidence seeking their explanation  thereabout in their examination under Section 313 of the  Code of Criminal Procedure.  Had it been the prosecution  case that the appellant No. 1 after throttling the deceased  and setting her on fire escaped through one of the two open  places mentioned by the High Court, it was obligatory on the  part of the Court to give an opportunity to the appellants  to explain thereabout.  Such a circumstance, had it been put  to the appellant no.1, could have been explained away by  him.  The appellants were, therefore, prejudiced by not  being given a chance to explain the said purported material  against him.  It is not a case where no prejudice can be  said to have been caused to the appellants.

       The findings of the learned Sessions Judge to the  effect that had any person slipped or gone away from that  window, pedestrians through the lanes must have seen such  person cannot, in our opinion, be said to be irrational  warranting interference by the High Court.  If the  observations of the High Court to the effect that persons  going through the road do not keep a vigil on such  movements, is correct, the same by would itself give rise to  some surmises keeping in view the fact that there existed a  greater possibility of the appellant no.1 being seen as his  jumping from the window would have been abnormal which would  attract the attention of the persons who had assembled to  take water from the tap.  We also fail to see any force in

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the finding of the High Court to the effect that only  because the appellant no.1 was the husband of the deceased  he had a chance to throttle her all of a sudden without any  resistance. The finding of the High Court to the effect that  Gulbadanbai having sustained burn injuries in her hand, the  probability of her presence at this time of setting of fire  cannot be ruled out is contradictory to its ultimate finding  that she was guilty of offence only under Section 201 of the  Indian Penal Code and not under Section 302/34 thereof.

       It is now well-settled that benefit of doubt belonged  to the accused.  It is further trite that suspicion,  however, grave may be cannot take place of a proof.  It is  equally well-settled that there is a long distance between  ’may be’ and ’must be’.

       It is also well-known that even in a case where a plea  of alibi is raised, the burden of proof remains on  prosecution. Presumption of innocence is a human right.   Such presumption gets stronger when a judgment of acquittal  is passed.  This Court in a number of decisions has set out  the legal principle for reversing the judgment of acquittal  by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10  SCC 79, Mahabir Singh Vs. State of Haryana, (2001) 7 SCC 148  and Shailendra Pratap & Anr. Vs. State of U.P. (2003) 1 SCC  761), which had not been adhered to by the High Court.

       The entire case is based on circumstantial evidence.   Pieces of circumstances, however, strong may be, it is well- known that all links in the chain must be proved.  In this  case a vital link in the chain, viz., possibility of the  appellant No. 1 committing the offence, closing the door and  then sneaking out of the room from one of the two places had  not been proved by the prosecution.   

       We, thus, having regard to the post mortem report, are  of the opinion that the cause of death of Bimlabai although  is shrouded in mystery but benefit thereof must go to the  appellants as in the event of there being two possible  views, the one supporting the accused should be upheld.

       For the reasons aforementioned, we are of the opinion  that the impugned judgment cannot be sustained which is set  aside.  Accordingly, the appeal is allowed.  The appellants  are on bail.  They are discharged from the bail bonds.