Uttarakhand High Court
Anand Joshi vs State Of Uttarakhand on 7 June, 2017
Equivalent citations: 2017 CRI. L. J. 3335, (2018) 181 ALLINDCAS 321 (UTR), (2017) 101 ALLCRIC 392, (2018) 1 DMC 432
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.144 of 2011
Smt. Bimla Joshi & another ....... Appellants
Versus
State of Uttarakhand ...... Respondent
With
Criminal Appeal No.147 of 2011
Anand Joshi ....... Appellant
Versus
State of Uttarakhand ...... Respondent
Mr. L.K. Tiwari, Advocate, for all the appellants.
Mr. D.K. Sharma, Sr. Addl. Adv. Gen. assisted by Mr. N.S. Kanyal, Brief
Holder, for the State of Uttarakhand.
Dated: June 07, 2017
Coram: Hon'ble Rajiv Sharma , J.
Hon'ble Sharad Kumar Sharma , J.
Per: Hon. Rajiv Sharma, J.
Since the common questions of law and facts are involved in both these appeals, the same have been taken up together and decided by this common judgment.
2. These appeals are instituted against the judgment and order dated 27.6.2011, whereby the appellants/accused, who were charged with and tried for the offences punishable u/s 302, 304-B, 498-A and 201 IPC and u/s 3/4 of the Dowry Prohibition Act, were acquitted for the offences punishable u/s 304B, 498A and 3/4 of Dowry Prohibition Act, but they were 2 convicted u/s 302 and 201 IPC. The Trial Court has sentenced the appellants to undergo life imprisonment with fine of Rs.5,000/- each u/s 302 IPC and in case of default of fine, to undergo additional two years' rigorous imprisonment. Each of the appellants was further directed to undergo two years' rigorous imprisonment with fine of Rs.1,000/- each for the offence u/s 201 IPC and in case of default in payment of fine, to undergo six months' additional rigorous imprisonment.
3. Appellant Rebadhar Joshi has died during the pendency of appeal, hence the appeal (CRLA 144/2011) qua him is abated.
4. Case of the prosecution, in a nutshell, is that the marriage of deceased Lata Joshi was solemnized with the appellant Anand Joshi on 26.12.2004. Police was informed on 13.3.2010 that Lata Joshi had committed the suicide. PW1 Anand Ballabh Bhatt received the information on 13.3.2010 at 6 AM from one Girish Joshi (elder brother of Anand Joshi) that the deceased has committed suicide and they should come to their house. Thereafter, the brother of deceased lodged the FIR on 15.3.2010, stating therein, that the accused used to demand dowry from the deceased. However, he (PW1) was not in a position to meet the demand of accused and other family members. The body was sent for conducting the post-mortem. Investigation was completed and the Challan was put up after completing all the codal formalities.
5. Prosecution has examined as many as seven witnesses in support of its case.
36. Thereafter, the statements of the accused were recorded u/s 313 Cr.P.C. They have denied the case of prosecution. In oral evidence, they have produced DW1 Girish Chandra Joshi in their support.
7. The Trial Court has convicted and sentenced the accused, as aforementioned. Hence these appeals.
8. Learned Counsel appearing for the appellants has vehemently argued that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt.
9. Learned Sr. Addl. Adv. General, appearing for the State, has supported the judgment dated 27.6.2011.
10. We have heard learned Counsel for the parties and perused the entire material available on the record.
11. According to the prosecution story, the marriage between the accused Anand Joshi and deceased Lata was solemnized on 26.12.2004. The deceased died on 13.3.2010. The FIR was registered on 15.3.2010. The family members of the deceased were under shock and thus, it caused the delay in lodging the FIR. The post- mortem on the body of deceased was conducted by PW5 Dr. R.V. Singh. According to the post-mortem report, the deceased was strangulated and thereafter, her body was burnt.
12. It is true that PW1 Anand Ballabh Bhatt, PW2 Bhagirathi Bhatt and PW3 Anita Bhatt did not support the prosecution case and they were declared hostile.
13. According to the PW1, his sister was never harassed for bringing insufficient dowry. He was declared hostile and was cross-examined by learned ADGC. He 4 has admitted in his cross-examination that no member of his family had visited the house of in-laws of his sister. He has admitted that he himself has lodged the report on 15.3.2010, though with an explanation, that it was at the instance of some people but he has not supplied the names of persons, who, according to him, have asked him to lodge the report. He has admitted his signatures on the report. In his cross-examination by learned ADGC, he has deposed that the brother-in-law (Jeth) and sister-in-law (Jethani) of his sister were residing separately from the deceased. Their kitchen was also separate.
14. PW2 Bhagirathi Bhatt is the mother of deceased. According to her also, her daughter has never complained him that the accused were demanding dowry. She was also declared hostile. When being cross- examined by learned ADGC, she has denied that any statement was given by her u/s 161 Cr.P.C. In her cross-examination, she also deposed that her daughter's father-in-law, mother-in-law and brother-in-law (Jeth) and sister-in-law (Jethani) were living separately.
15. PW3 Anita Bhatt is the sister-in-law of deceased. She has deposed that the deceased never lodged any complaint against the appellants for bringing insufficient dowry. She was also declared hostile. In her cross-examination by learned ADGC, she denied that her statement was ever recorded u/s 161 Cr.P.C.
16. Post-mortem on the body of deceased was conducted by PW5 Dr. R.V. Singh. He has proved the post-mortem report. According to him, cause of death was asphyxia and post-mortem burn injuries. According 5 to him, the time lapse between the death and post- mortem was 24-36 hours.
17. PW6 Ram Sharan Jayant has stated that he conducted the investigation and submitted the charge- sheet after completing the same.
18. PW7 is Ashutosh Kumar Singh who has prepared the inquest report.
19. DW1 is Girish Chandra Joshi who has testified that the kitchen of deceased and her husband was separate from her father-in-law and mother-in-law. However, in his cross-examination, he has admitted that at the time of incident, he was in Basoli but other accused were present in the house.
20. Surprisingly, it is PW1 Anand Ballabh Bhatt, the brother of deceased, who has lodged the FIR. According to him, his sister was killed by the accused persons. However, he has not supported the prosecution case when he appeared as PW1. His simple explanation for lodging the FIR was that it was at the instance of some people, however, he has not mentioned the names of those persons. Similarly, PW2 Bhagirathi Bhatt, mother of deceased, PW3 Anita Bhatt, sister-in-law of deceased and PW4 Rajeev Gurrani, being in relations, did not support the case of prosecution and they were declared hostile. They have tried to protect the accused and they even denied the recording of their statements u/s 161 Cr.P.C. It has come in the statement of DW1 that he was in Basoli at the time of incident but the other accused were present at the house.
21. Though, the prosecution witnesses PW1 Anand Ballabh Bhatt, PW2 Bhagirathi Bhatt, PW3 Anita Bhatt 6 and PW4 Rajeev Gurrani have been declared hostile but their remaining statements can be relied upon to the extent it supports the prosecution version.
22. In the present case, the close relations of the deceased have not supported the case of prosecution in entirety and they were declared hostile. According to these witnesses, the deceased was never harassed for bringing insufficient dowry and the relations between the families were cordial. However, the fact of the matter is that none of the family members have attended the funeral. Thus, the conduct of the witnesses is unusual. They have tried to save the accused by deposing falsely in the Court. In case the relations were cordial between the families, there was no reason for the parents and other close relations not to attend the funeral of deceased.
23. Their Lordships in (2010) 9 SCC Page 567 in the matter of 'C. Muniappan & others v. State of Tamilnadu' and analogous matter, have held that the relevant portion of the statements of the hostile witnesses can be taken into consideration and it cannot altogether be discarded. Their Lordships in paragraph nos.83 and 84 have held as under: -
"83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW
86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law.
Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature."
24. PW5 Dr. R.V. Singh, who conducted the post- mortem, has categorically stated that the deceased was strangulated and thereafter, she was burnt. The time 7 when the deceased was killed, accused were present at the house. It was a joint house. It was the burden on the accused u/s 106 of the Evidence Act to prove as to how the deceased died in their house. The accused had the specific knowledge of the fact that the deceased had died in their house and thus, it was for them to explain the circumstances of her unnatural death.
25. In 2016 (4) SCC Page 604 in the case of 'Gajanan Dashrath Kharate v. State of Maharashtra', their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under: -
"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."8
26. In (2015) 4 SCC Page 393 in the case of 'Ashok v. State of Maharashtra' their Lordships of Hon. Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under: -
"12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt."
27. In the present case, all the accused were in the house at the time of incident but they have not explained the circumstances which led to the death of deceased.
28. Learned Counsel appearing for the accused has vehemently argued that the statement of PW5 Dr. R.V. Singh cannot be taken into consideration being advisory in nature. However, it has been duly proved that the deceased was killed and thereafter, her body was burnt. Thus, it was necessary for the appellants to show under what circumstances the deceased died in their house. The presence of carbon in Trachea and Larynx was not necessary since the deceased was killed and thereafter burnt.
929. In Modi's Medical Jurisprudence and Toxicology, Twenty-third edition page 583, learned Author has drawn the following distinction between the ante-mortem and post-mortem burns: -
Medico-Legal Aspects of Burns "i. Distinction between Ante-mortem and Post-mortem Burns People sometimes produce burns on a dead body to support a false charge of murder, and at other times the police remove a dead body while in the act of burning on a cremating pyre to send to the medical officer for post-mortem examination, when they suspect that the body is being hurriedly cremated to conceal an act of murder. In both cases, the medical officer should be prepared to tell the difference between ante-mortem and post-mortem burns.
The three main points to differentiate between ante- mortem and post-mortem burns are: -
a. line of redness:
b. vesication;
c. reparative processes.
(a) Evidence of Vital Reactions- Line of Redness: In the case of a burn caused during life, a line of redness involving the whole true skin is formed around the injured part. It is a permanent line, persisting even after death, but redness or erythema, which is found beyond this line of redness due to distension of the capillaries, is transient, disappears under pressure during life and fades after death. The line of redness, being a vital function, separates living from dead tissues, and is often present in burns caused during life, though it takes some time to appear. It is, however, possible that it may be absent (in the case of a person of a very weak constitution who dies immediately from shock due to burns).
(b) Vesication: Vesication caused by a burn during life contains a serous fluid consisting of albumen, chlorides, and often a few polymorphonuclear white blood cells and has a read, inflamed base with raised papillae. The skin surrounding it is of a bright read and copper colour. This is known as true as compared with false vesication which is produced after death. False vesication contains air only but may contain a very small quantity of serum comprising traces of albumen and chloride. Again, its base is hard, dry, horny and yellow instead of being red and inflamed.
(c) Reparative Processes: Reparative processes, such as signs of inflammation, formation of granulation tissue pus and sloughs, will indicate that the burns were caused during life.
Burns caused after death show no vital reaction and have a 10 dull while appearance with the openings of the skin glands coloured grey. The internal organs are roasted, and emit a peculiar offensive odour. However, Spitz and Fisher7 have pointed out that it is not possible to establish, either with the naked eye or by histological examination, whether burns occurred shortly before death or soon after. Circumstantial evidence alone will provide the answer. Malik has described enzyme changes in the early phase of healing skin bruns, in guinea pigs."
Similarly, in HWV Cox Medical Jurisprudence and Toxicology, 7th Edition, learned Author has drawn the following distinction between the burns which were inflicted before and after death as under: -
"8. WHETHER THE BURNS WERE INFLICTED BEFORE OR AFTER DEATH This primary decision of great forensic importance, because of the possibility of the disposal of a criminal death in a fire. The differentiation between ante-mortem and post-mortem burns must be attempted in every examination of a fatal burning. Although this may be difficult or even impossible in some cases, it must be uppermost in the mind of the medical examiner.
The most important criterion is the presence or absence of a vital reaction at the margin of the burns. Which part of the body surface is burnt during life, there will almost inevitably be a zone of hyperaemia at the edge of the burn area. While the person is still alive, there may be reddening of the skin even beyond this zone, but this may fade after death leaving only the marginal zone of erythema at the edge of the burn. This may vary in width but is usually a centimeter or so unless death supervened very soon. It is due to oedema of the tissues and capillary dilatation and merges with the edge of the burn which may show blistering or charring. Unfortunately, where death occurs very rapidly (within a few moments) then the erythematous margin of an ante-mortem burn may be indistinct or even absent. However, wherever survival persists for more than a few moments it is almost invariably found.
Though it is very difficult to determine in peri-mortal burns, where the injury came just before or just after death, the presence of a 'vital reaction' has for long been taken as proof of infliction before death. However, this can be unreliable, and theoretically, should be so, as 'death' usually means cessation of the heart beat, whereas a red flar on the skin is due to muscular action in the small arterioles, which remain active, as does all muscle for up to some hours after death. As proof of this unreliable sign, example can be given of a murder by strangulation, where the killer, at least half an hour after death, made an abortive attempt to destroy the evidence by burning the body. He started a small fire, which soon went out, but on examination of the skin, a large, wide zone of erythema 'vital reaction' was clearly visible.
Difficulty arises where the body is completely covered with burns so that no unburnt skin remains to display a vital reaction.11
Where the body is actually charred or incinerated, then naturally this aspect of determining the time of the burn is impossible.
Old textbooks of forensic medicine have made much play with the content of blisters, claiming that the ante-mortem blister contains a fluid high in protein whereas the post-mortem burn is either empty or contains serous fluid. In reality, theory and practice diverge and this criterion is often of little use. The blisters may have already collapsed or in severe burns the skin may be charred and there may be ante-mortem and post-mortem blisters present in the same body, because the heat contained after death occurred.
The appearance of ante-mortem blisters is of a raised dome either containing gas or fluid and with a reddened base. However, the base of a post-mortem blister may also present a similar appearance. Where the burns are peri-mortal, ie death and burning occurred simultaneously, it may be quite impossible to say definitely whether the body was alive at the time of the burns. It must also be remembered that where wide areas are burned, the burning process is a continuous one and may often overlap the point at which life became death.
Other pointers to distinguish ante-mortem from post-mortem burns are to be seen in other organs, rather than the skin. Where death has occurred in a fire in a dwelling, in a motor vehicle or aircraft or indeed anywhere there is burning material, then smoke, fumes and carbon monoxide will often be produced.
If soot and carbon particles are found in the larynx, trachea, main bronchi and smaller bronchi, then respiration must have been proceeding during the conflagration and therefore the fire was in progress during life. It is possible for some passive percolation of soot and smuts to reach the back of the pharynx even after death if the month is open, but they certainly cannot be carried in any quantity beyond the vocal chords and certainly not into the deeper bronchi. Histological examination of the lungs may reveal carbon in the terminal bronchioles which is absolute proof of life during the fire. Similarly, though soot may be found in the mouth and throat in a dead person not alive during the fire, swallowing could not take place and therefore soot particles could not carried to the lower oesophagus and into the stomach, as is commonly found in victims of conflagrations.
The next important matter is the presence of carbon monoxide in the body, which may be obvious even externally by the pinkness of the post-mortem hypostasis. In many fire victims, the first incision at autopsy reveals a cherry-pink colour of blood and muscles which can be confirmed by simple spectroscopic examination to be due to carboxyhaemoglobin. Even in rapid firs such as in automobiles, considerable quantities of carbon monoxide may be released and be respired even though life only survives for a moment or two."
However, great caution must be used in interpreting carboxy-haemoglobin in fire victims. The following two rules are of importance-
(a) If the tissues of a deceased victim contain a significant quantity of carbon monoxide (say more than 10% saturation) then the victim must have been alive during the fire.
(b) However, if the tissues contain no carbon monoxide, this does not mean that he must have been dead during the fire.
This latter statement is of great importance, as several cases have occurred in which false accusations of murder have been 12 made against persons where alleged victims have been found dead in a fire with no carbon monoxide in their body. It is a confirmed fact that undoubted cases of ante-mortem fatal burns have no carbon monoxide in their blood-streams, due to a variety of reasons such as low production of carbon monoxide, convection currents, rapid death, and other factors which make it quite unsafe to use the absence of carbon monoxide as a criterion of death before the fire occurred. Further proof of the variability of HbCO levels found in multiple deaths in the same house fire, where bodies in the same room may show widely differing monoxide level. However, the converse can be accepted with confidence, that is, the presence of carbon monoxide means that the person was alive during the fire.
The levels of carbon monoxide in fires may reach 70-80% though many old persons and children die at much lower levels perhaps 30-40%. It is often humane and beneficial to be able to inform relatives in a fatal burns case that the deceased was probably already dead (or at least was unconscious) due to carbon monoxide poisoning, before the flames reached the body."
30. PW5 Dr. R.V. Singh, who conducted the post- examination on the body of deceased, has opined the cause of death as under: -
'Caused by asphyxia as a consequence of suffocation (ante-mortem) and post-mortem burning as indicated by protruded carbon black burnt tongue within and no sooty carbon particles were found in larynx, trachea, Esophagus.'
31. The accused, after killing the deceased, have also tried to destroy the evidence by burning the body.
32. The Trial Court has correctly appreciated the oral as well as documentary evidence, in particular, of material witness PW5 Dr. R.V. Singh while convicting and sentencing the appellants/accused under Section 302 r/w Section 201 IPC.
33. On the basis of statement of expert witness i.e. PW5 Dr. R.V. Singh, who has categorically opined that the deceased was strangulated and thereafter was burnt, 13 the prosecution has proved its case against the appellants beyond reasonable doubt. Thus, in this case, the motive is not very relevant.
34. In (2015) 4 SCC Page 281 in the case of 'Bhim Singh & another v. State of Uttarakhand' their Lordships of Hon. Supreme Court have held that the proof of motive or ill-will is unnecessary to sustain conviction where there is clear evidence. Their Lordships have held as under: -
"21. The accused persons have taken the defence that they themselves had informed the Gram Panchayat after Prema Devi had died upon which the Gram Pradhan along with the other persons went to the accused persons' house, where they found the dead body of Smt Prema. A prudent man, trying to save a person from dying would have taken the deceased person to the nearest hospital, and would not have waited for her to die. The argument put forward by the learned counsel for the accused that the deceased first consumed poison and then on being apprehensive of her death, she set herself on fire, is further proved wrong, as any reasonable man would try to save his wife if such a situation arise. When facts are clear, it is immaterial whether motive was proved. Absence of motive does not break the link in the chain of circumstances connecting the accused with the crime as held by this Court in Mulakh Raj v. Satish Kumar. Further, proof of motive or ill-will is unnecessary to sustain conviction where there is clear evidence."
35. In (2015) 4 SCC Page 387 in the case of 'Sanjeev v. State of Haryana' their Lordships of Hon. Supreme Court have held that to establish the commission of murder by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. Intention can be formed even at the place of incident at the time of commission of crime. Their Lordships have held as under: -
"15. On behalf of the appellant it is submitted that there was no motive on the part of the appellant to commit murder of Raj Pal, as such, in absence of motive, it cannot be said that it was only the appellant who could have committed the crime.
16. It is settled principle of law that, to establish commission of murder by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of 14 crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused."
36. It is true in the present case that there are no eyewitnesses of the incident. However, the chain of the events in the present is complete leaving no room for any other hypothesis except that the accused were responsible for the death of the victim.
37. Accordingly, there is no merit in both these appeals and the same are hereby dismissed.
38. Appellants Smt. Bimla Joshi and Anand Joshi are on bail. Their bail is cancelled. Let they be taken into custody forthwith to serve out the sentence, so awarded to them by the Trial Court.
39. Let a copy of this judgment and order along with the LCR be transmitted to the Court below for compliance of the order forthwith.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) Rdang