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PETITIONER: SAROJINI AND ORS.

       Vs.

RESPONDENT: STATE OF M.P. AND ORS.

DATE OF JUDGMENT16/10/1992

BENCH: [KULDIP SINGH AND K. RAMASWAMY, JJ.]

ACT: Indian Penal Code, 1860: Sections 302  read  with  34,  201-Dowry  death-Husband  and mother-in-law charged  with-Convicted and  sentenced to life imprisonment-High Court  acquitting both  the accused giving them benefit  of doubt-Mother-in-law  convicted u/s.201  and sentenced-‘Participis    Criminis’-Circumstances     clearly showing  both   the  accused  participating  in  the  crime- Acquittal set  aside and conviction and sentence of both the accused restored-Conviction  and sentence  of  Mother-in-law u/s.201-Affirmed.

HEADNOTE: The appellant-accused  and her  son were  charged  with offences under  S.302 read  with S.34  IPC or  alternatively under S.306 read with S.34 I.P.C. for causing the death of , or abetment to cause suicide by, the daughter-in-law/wife of the accused.  According to the prosecution, it was a case of dowry death.  The dead  body was found in a completely burnt condition in  the matrimonial  house of  the  deceased.  The trial Court  convicted both the accused under S.302 IPC read with  S.34  IPC  and  sentenced  them  to  undergo  rigorous imprisonment for life. On appeal  the High Court acquitted both the mother and son of  their offences  under S.302  read with  S.34 IPC but convicted the  mother under  S.201 IPC  and sentenced her to undergo rigorous imprisonment for five years. The State preferred an appeal against the acquittal and the  convicted  accused  preferred  an  appeal  against  her conviction and sentence. On behalf  of the  appellant accused  it was  contended that the  deceased either  committed suicide  or died due to fire accident;  that the  husband of  the deceased  was  not present at  the time  of occurrence; and that the mother-in- law was entitled to acquittal under S.201 IPC. Allowing the  appeal by  the State  and dismissing  the appeal by the accused, this Court, HELD: 1.  There is  no inconsistency in the evidence of the Post-mortem Doctor and the forensic Doctor, Who minutely examined all  the factual  details and  came to  the finding that the  death was  due to  asphexia. This finding has been accepted by  the trial court as well as the High Court. Thus there is  no conflict  of medical   opinions  to extend  the benefit of doubt to the accused. [32-D-E] State (Delhi  Admn.) v.  Gulzarilal Tandon, AIR 1979 SC 1982, distinguished. 2.   The conduct  of the  appellant-accused as  evidenced by

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Ex.P-1 to  P-4 the  pre-marital demand  for dowry  and  non- compliance thereof is a relevant fact to establish motive as rightly found  by  the  courts  below.  The  fact  that  the daughter-in-law met with homicidal death within three months from the  date of  marriage  is  also  a  relevant  fact  to conclude that  the death  was due  to the  failure to comply with the  demand for  dowry. At  the earliest  the appellant accused  came  forward  with  the  plea  that  the  deceased committed suicide  at 8.00  or 8.30  a.m after  taking meal, which is  found to  be false,  is also  a relevant  fact  in completing the chain of circumstances. [33-C-D) 3.   The dead  body was  found in the store room which is in the first  floor. There is no other way of ingress or egress to the  first floor,  except through the stair-case lying in the ground  floor of the house. As such it is impossible for any other person to enter into the house except the inmates. Admittedly, the  deceased and  her mother-in-law  alone were living in the house while her husband was working at a place 90 KMs.  away and  obviously he  was coming and going to his place of  duty. The High Court also accepted the possibility of his  coming to his house and after committing the offence he must  have left  the place as the journey on the high-way would take hardly two hours. The murder was committed within hardly three  months from  the date  of marriage. As per the evidence of  DW-4   the deceased  was happy  in the  marital home. It  would, therefore,  conclusively exclude the theory of suicide.  Thus, she  must have been done to death by none other than inmates of the matrimonial home. [32 F-H; 33-A,B] 4.   When the  deceased was  done to  death by  asphexia  by asphexia and  thereafter the  dead body  was  burnt  soaking Kerosene on  the naked  body, it  would be obvious that more than one  participated in  committing the  murder. The  High Court also found that the appellant-accused had an associate to screen  the evidence of murder. But the investing officer not only  conducted perfunctory  investigation but also gave evidence in  a most  unsatisfactory manner.  He did not make any attempt  during investigation to collect the evidence of the presence  of the husband of the deceased at the place of occurrence during  that night  or thereafter.  The fact that more than  one participated  in the  commission of the crime and the  fact that  there is no other person enimical to the deceased to  commit the  crime and  the fact  that it is not impossible for  the  accused-husband  to  immediately  leave after committing  the crime, would clearly connect him to be a participis  criminis in  committing homicide  of his wife. Without his  cooperation and participation in committing the crime, on  the facts and circumstances, it is impossible for his mother  alone to  commit the  crime.  Except  denial  he offered no  explanation in  his S.313  statement. The  false theory of  suicide is  also a  circumstance to be taken into account. The  False theory of suicide is also a circumstance to be  taken into  account. The  remorseless conduct  of the appellant is  a relevant  fact.  Also  the  conduct  of  the accused-husband is  inculpatory. The  normal  human  conduct would be  that on  hearing the news of the death of his wife he was  expected to  immediately reach home: to make enquiry for the  cause of  death, and to take further actions, which are absent in this case.  [33-EH; 34-A] 5.  All   the  circumstances   of  the   case  clearly   and conclusively connect  and establish  that both  the  accused alone have  committed the  crime and  the prosecution proved the guilt  of the  accused beyond  all reasonable doubt. The Sessions Court  is right  in its conclusion that they shared the common  intention to commit the murder. Accordingly, the conviction and  sentence recorded by the trial court of both

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the accuse  under s.302  read with  s.34 I.P.C. is restored. The High Court had not bestowed its attention to the crucial facts, and  had wrongly  given the  accused benefit of doubt leading   to miscarriage  of justice. The order of acquittal by the  High Court under S.302 read with S.34 I.P.C. of both the accused  are set  aside. The  conviction under S.201 IPC and the  sentence imposed  on the  appellant-accused by  the High Court is affirmed. [34 C-E]

JUDGMENT: CRIMINAL  APPELLATE   JURISDICTION  :  Criminal  Appeal  No. 626,627 of 1992. From the  Judgment and  Order dated  23.11.92 of  the Madhya Pradesh High Court in Crl. A.No.952 to 1985. U.R. Lalit and S.K Gambhir for the Appellant. Sakash Kumar and Uma Nath Singh for the Respondents. The Judgment of the Court was delivered by K. RAMASWAMY, J. Special leave granted.      Vinod Bhalla and his mother Smt. Sarojini were  charged under Sec.  302 read with S.34 I.P.C. or alternatively under s.306 read  with s.34  I.P.C. by the Sessions Judge, Rewa in Sessions Trial  No. 75  of 1983  for causing the death of or abetment to  cause suicide  by Smt.  Rajini Bhalla,  aged 22 years. Rajini  was married to Vinod on Feb. 3,1982 and three months  thereafter   her  dead   body  in   a  charred   and unrecognisable condition was found on the first floor of the matrimonial home  at Rewa  on May  27,1982. The  trial court convicted both  the accused  under s.302  read with s.34 and sentenced them   to  undergo rigorous imprisonment for life. On appeal, the High Court by its Judgment dated November 23, 1991 acquitted  them of  the offence  under s.302  read with s.34, but  convicted Smt.  Sarojini under  s.201 I.P.C.  and sentenced her  to undergo R.I. for five years. These appeals are by Sarojini and the State respectively.      The facts  lie in a short compass. PW-1, Pashupathinath Tandon and  PW-2, Vimla,  are parents PW-3, Kailash Nath and PW-4,  Shiv   Charan  Lal,   are  brothers  of  Rajini.  The prosecution case  is that  Sarojini wrote  Ex.-4 to  6, pre- marital letters,  to PW-1  demanding Scooter,  Tape Recorder and Tullu  Pump (motor  for pumping  water to upper storey), but the same could not be immediately given  at marriage. It is the  prosecution case  that it  is a case of dowry death. The case  of the  accused is one of suicide. The case hinges upon circumstantial  evidence. At  about 8.00  a.m., on  May 27,1982, PW-8,  the Sub-Inspector  of Rewa  Police  Station, received  a   message  of   the  house   burning  which  was transmitted to PW-10, Mahipal Singh, the Inspector. When PW- 10 went  to the  scene of occurrence, PW-8 was at the scene. He conducted  a panchanama of the scene offence on the first floor of  the house  of the  accused. Rajini’s  dead body in charred and  unrecognisable condition  was found  with   the tongue protruding,  the blood was oozing from the mouth, the limbs were  spread on  the upper  side in retracted position and the  deceased was  lying naked on the back in the supine condition. The  dead body  was sent  for post-mortem and Dr. Moghe, PW-9  conducted the  post-mortum. According to him he could not  give the  cause of  death, but  he noted that the lungs congested  and oedematous;  both the chambers of heart were empty  and found  semi-digested food  in the stomach of the deceased.  The entire material was transmitted to PW-11, Harish Chandra,  the Director,  Medicology.  On  minute  and detailed examination  of the materials furnished to him, PW- 11   opined that  death was  due to  asphexia and  that  the

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deceased died after two or three hours of her last meal. The death could  not have  been in  the morning  between 8.00 or 8.30 a.m.  He also  found that  the  body  of  the  deceased continued to  be burnt  even after  death resulting  in heat cracks   and cracks  in the  limbs. Vinod  was working  as a Cashier-cum-Clerk in  the State  Bank at  Sidhi, 90 km. from Rewa, well  connected with  through traffic and it takes two hours to reach Rewa or to go back to Sidhi. The deceased and Sarojini were Staying in their house at Rewa.      The learned  Sessions Judge  found that  the motive  to kill the  young lady  who was  yet to blossom into womanhood was the  unsatiable thirst  for dowry.  The  death  was  not suicide, but  of homicide.  PW-11’s evidence  is  conclusive that the death was due to asphexia and that the murder could not be  committed by a single individual. After two to three hours of  last meal  the death  had  occurred.  Vinod  after committing the  murder must have left the place. The conduct of Sarojini  after the occurrence is unnatural. She was seen remorselessly sipping  coffee  and  snacks.  Therefore,  the accused alone  were responsible  for the  murder of  Rajini. Accordingly, the  Sessions  Court  recorded  conviction  and sentences.      On appeal  , the High Court affirmed that the death was homicidal and  occurred between  to   three hours  after the last meal.  Sarojini  was  present  in  the  house  and  she proclaimed   at panchnama  that the  death was  suicidal and that it  occurred  during  morning  hours.  The  prosecution established that  non-compliance of demanded dowry as motive for death  and that  it is  not impossible for Vinod to come in the  evening and  to commit  the murder and then to reach Sidhi in  the same  night. But  it acquitted  Vinod  on  the ground that the prosecution did not lead my evidence to show that Vinod  was present  at the time of occurrence and that, therefore, he is entitled to the benefit of doubt. Similarly the High  Court found  that Sarojini  alone could  not  have committed the  offence of   murder and there is no clinching evidence as  to who  committed the  murder. So she was given the benefit  of doubt.  However it  found that  she and  her associates attempted  to destroy  the evidence  of murder of Rajini. Therefore, she was convicted under s.201 I.P.C.      The facts  are shocking,  but the court should scan the evidence carefully  to find  whether there is legal evidence to connect the accused with the commission of the crime. The case  hinges   upon   circumstantial   evidence.   All   the circumstances must  conclusively  establish  with  the  only hypothesis that the accused alone committed the crime beyond reasonable doubt.  If there is any break in the links of the chain of  circumstantial evidence,  undoubtedly the  accused are entitled  to the benefit of doubt. The crucial question, therefore, is  whether the  prosecution has brought home the offence against Vinod and Sarojini.      Shri  U.R.   Lalit,  learned  senior  counsel  for  the accused, contended  that there  is long distance between may be true  and must  be true and the prosecution had failed to travel all  the distance  in establishing  conclusively that the accused  and the  accused alone had committed the crime. The evidence  of motive  furnished from the occular evidence of PW-1  to PW-4  evidence  of  motive  furnished  from  the occular  evidence  from  the  statements  under  s.161.  The medical evidences  of PW-9  and PW-11   are in conflict. The post-mortem report  does not indicate the cause of death and the evidence of PW-11 is not conclusive. It is based on only opinion   from   circumstances,   the   clinching   evidence establishes that  Rajini died  due  to  fire  accident.  She committed suicide or death is due to fire accident. There is

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no evidence that Vinod was present at the time of occurrence and Sarojini alone could not have committed the crime. There were inmates  in the house, like DW-4 and others, they could have committed the offence. Under the circumstances the High Court is  justified in  giving them the benefit of doubt and these facts  do not  warrant interference  under Art. 136 by this Court  and Sarojini is also entitled to acquittal under s.201 I.P.C.      We  have   given  our   anxious  consideration  to  the contentions  of   Shri  Lalit   and  ourselves  closely  and carefully scanned  afresh  the  entire  evidence  placed  on record. Normally this court would not undertake appreciation of evidence  afresh, but  in view  of the doubt expressed by the High Court and with  a view to satisfy our conscience we independently have  gone through  the evidence.  The crucial question in  this case  is whether  the death  of Rajini was suicidal or homicide. Both the courts concurrently found and we found  no good  ground to differ that the death of Rajini was homicide. The post-mortem report of Dr. Moghe found that the skin  was completely  burnt. Heart,  kidney, spleen  and liver were  also found  congested.  He  found  semi-digested food. The  tongue was  protruding and the eyes were bulging. Viscera was  sent for  chemical analysis. His report is Ex.- 14. The forensic expert Dr. Harish Chandra in his report, P- 20 opined that death in all probability was homicidal an had occurred between  two to three hours after last meal. In the Panchanama of the dead body, it was found that tongue of the deceased was protruding and blood was oozing from the mouth. Thread was  seen around  the waiste  soaked  with  kerosene. Panchanama establishes  that there  was no kerosene smell in the store  room in  which the dead body in a naked condition was found.  The sewing machine was found not burnt. The dead body continued to be burnt even after the death resulting in heat cracks and cracks on the limbs. On these materials both the courts  concluded that  the deceased  died two  to three hours after  the last  meal in  the  night  and  not  during morning hours, as spoken by DW-4, the maternal aunt of Vinod (brother’s wife  of Saraojini). The death was homicidal. The High Court  also conclusively  held that  protruding of  the tongue and  oozing of  blood from  the mouth  suggest, as  a fact, that  the deceased  died by asphexia, may be caused by pressure on  chest, throat  or nostrils. It was not possible for further  evidence to  found because  entire skin  of the deceased was  burnt. Accordingly it was found, "Rajini met a homicidal death  and the death occurred in the mid-night not in the morning hours". We have also gone through the report, Ex-20, and  the only crucial evidence of Dr. Harish Chandra, PW-11. We entirely agree with the conclusions reached by the High Court as well as by the learned Sessions Judge that the death was  homicidal due  to asphexia  and not  suicidal  as contended for.  We have  seen the Panchanama of the scene of occurrence which  would establish  that the roof of the room was blackened  and burnt and the rafters had fallen down. It would thus  be clear  that large carbon smoke must have been accumulated in  the stores and Rajini before death must have breathed and  the absence  of carbon soots or black soots or its traces  in her  lungs clearly  proves that the death was homicidal and thereafter the dead body was burnt.      The ratio  in State (Delhi Admn.) v. Gulzarilal Tandon, AIR 1979  SC 1382  is of little assistance to the appellant. Therein it  was found  as a  fact that  there is  a  dispute between different Doctors examined by the prosecution itself as to  the Cause  of death.  The trial  court  accepted  the prosecution case,  but the High Curt on detailed examination found that the evidence of the Doctors mutually inconsistent

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and given  benefit of doubt. In that context this court held that :      "Where the  medical evidence on the      side of prosecution and the accused      is more  or less  equally balanced,      the benefit of doubt must go to the      accused.   The   High   Court   has      discussed the  evidence  threadbare      and has  also relied on the medical      authorities on the various symptoms      and other  aspects of  epilepsy and      has held  that the  possibility  of      epilepsy cannot  be  ruled  out  in      this case. Once this possibility is      there, it will be impossible for us      to  interfere  with  the  order  of      acquittal  passed   by   the   High      Court."      In this  case there is no inconsistency in the evidence of the  post-mortem Doctor  and the  forensic  Doctor.  PW-9 could not opine the cause of the death, and he did not await the chemical  examination report  and also forensic opinion. Dr. Harish  Chandra,  PW-11,    minutely  examined  all  the factual details  and came to the findings that the death was due to asphexia. This finding has been accepted by the trial court as  well as  the High Court. Thus there is no conflict of medical  opinions to  extend the  benefit of doubt to the accused.      The question then is whether the husband and mother-in- law alone  have committed  the offence.  Photography  of the scene and the situation of the house disclose that the house consists of  ground floor  and the first floor. In the first floor, a  bed room  and another store room and another store room was found as per Panchanama. The dead body was found in the store  room. There  is no other way of ingress or egress to the  first floor,  except through  the staircase lying in the ground  floor of the house. As such it is impossible for any other  persons  to  enter  into  the  house  except  the inmates. Admittedly,  the deceased  and Sarojini  alone were living in  the house  while  Vinod  was  working  at  Sidhi, obviously he  was coming and going to his place of duty. The distance between  Rewa and  Sidhi is  90 Km.  The High Court also accepted  the possibility of the Vinod’s coming to Rewa and after  committing the  offence    leaving  Rewa  as  the journey on the high-way would take hardly two hours to reach Sidhi. The  murder was  committed within hardly three months from the date of marriage and two to three hours after night meal. As  per the evidence of DW-4 the deceased was happy in the marital  home. It would, therefore, conclusively exclude the theory  of suicide  as pleaded by Sarojini and death was in the  mining at 8.00 or 8.30 a.m. Within a short period of three months,  there is  no possibility of anyone developing such deep  enimity with  Rajini to put to end the life of an young married  woman. It must, therefore, be none other than the inmates of the matrimonial home.      No doubt  there is  improvement in the evidence of PW-1 to   PW-4 on the demand of dowry of the specified items, but in the statements under s.161 they have stated the factum of demand for  dowry, but  the details  were  absent.  But  the evidence receives  corroboration from  Ex.P-1 to  4  letters written by  Sarojini. If  we  look  into  the  conduct    of Sarojini as  evidenced by  Ex.P-1  to  P-4  the  pre-marital demand for  dowry. At   the  earliest Sarojini  came forward with the  plea that  a the  deceased died due to suicide, at 8.00 or  8.30 a.m.  after taking meal, which is now found to

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be false,  is also  a relevant  fact completing the chain of circumstances. when  the  deceased  was  done  to  death  by asphexia and  thereafter the  dead body  was  burnt  soaking kerosene on a naked body, it would be obvious that more than one participated  in committing  the murder.  The High Court also found  that Sarojini  had an  associate to  screen  the evidence of murder. Who would be the  other person? Here the presence of  Vinod is  called into picture. We are surprised to note  that PW-10,   the  investigating officer,  not only conducted perfunctory  investigation but  also gave evidence in a most unsatisfactory manner. He did not make any attempt during investigation to collect the evidence of the presence of Vinod  at Rewa  during the  night or thereafter. The fact that more  than one  participated in  the commission  of the crime and the fact that there is no other person enimical to Rajini to  commit the  crime and  the fact  that it  is  not impossible   for Vinod  to immediately leave Rewa  for Sidhi after committing  the crime, would clearly connect him to be a participation  in committing  the  homicide  of  his  wife Rajini.  Without   his  cooperation   and  participation  in committing the  crime, on the facts and circumstances, it is impossible, for  Sarojini alone  to commit the crime. Except denial he offered no explanation in his s.313 statement. The false theory  of suicide  is also a circumstance to be taken into account.  The remorseless  conduct  of  Sarojini  is  a relevant fact.  Conduct of  Vinod also  is inculpatory.  The normal human  conduct would  be that  on hearing the news of the death  of his  wife he was excepted to immediately reach home; to  make enquiry  for the  cause of  death and to take further actions  which are  absent in this case. Under these circumstances we  have  no  hesitation  to  agree  with  the Sessions Court  and disagree  with the high Court that Vinod also was  a participis  criminis in committing the crime. We have also  no hesitation  to conclude  that Sarojini  is the villain of the piece in committing the murder of Rajini.      Accordingly  we   hold  that   all  the   circumstances discussed  above  clearly    and  conclusively  connect  and establish that  both the  accused alone  have committed  the crime and  accordingly we  hold that  the prosecution proved the guilt  of the  accused beyond  all reasonable doubt. The Sessions Court  is right  in its conclusion that they shared the  common  intention  to  commit  the  murder  of  Rajini. Accordingly we  uphold the conviction and sentences recorded by the trial court of both the accused under s.302 read with s.34 I.P.C. The High Court had not bestowed its attention to the crucial  facts and  given the  accused benefit  of doubt leading to  miscarriage of justice. Accordingly the judgment of the High Court is reversed. The order of acquittal by the High Court  under s.302  read with s.34 I.P.C. of both Vinod and Sarojini are set aside and that of the Sessions Court is restored. Accordingly  the State  appeal is  allowed and the appeal of Sarojini shall stand dismissed. The conviction and sentence under  s.201 I.P.C. affirmed and the same would run concurrently with life imprisonment.      Before concluding  the case,  we place our appreciation for Dr.  Harish Chandra’s  sincere devotion to duty, who has correlated all the material facts and circumstance available from  the   record  placed  before  him  to  arrive  at  the conclusions; otherwise  miscarriage of  justice  would  have been ensued.  The investigating officer did not even conduct inquest over  the dead  body. he  did not  even speak of the details which of scene of offence and other material details smacks of  irresponsibility. Vinod  Bhalla shall immediately be taken  into custody  to undergo  the sentence of R.I. for life.

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Criminal appeal No. 626/92 dismissed. Criminal Appeal No. 627/92 allowed.