Madhya Pradesh High Court
Shobhanlal And Ors. vs State Of M.P. on 12 April, 1999
Equivalent citations: 2000(1)MPHT49
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari, R.P. Gupta
JUDGMENT D.M. Dharmadhikari, J.
1. By judgment dated 14th September, 1989, under appeal, of the First Additional Sessions Judge, Balaghat, appellant No. 1 Shobhanlal stands convicted and sentenced to life imprisonment under Section 302 I.P.C. His two brothers, appellants No. 2 Sukhchand and No. 3 Roopchand and the remaining two appellants, No. 4 Madanlal and No. 5 Yado have been convicted under Section 302/149 I.P.C. and sentenced to imprisonment for life. All the appellants have been further convicted under Sections 147 and 364 I.P.C. and sentenced to R.I. for one year and R.I. for 10 years with fine of Rs. 200/- each respectively for the said two offences. It was directed that in default of fine the accused would suffer further R.I. for four months.
2. The charge against the appellant No. 1 Shobhanlal is that he along with the co-accused on 21.11.1988 at about 6.00 in the evening with the help and assistance of the other co-accused persons forcibly abducted his wife Smt. Dhurpatabai who was at the relevant time living with her parents and killed her in the night intervening 22.11.1988 and 23.11.1988. Her dead body was found in a well.
3. The defence of the accused is that appellant No. 1 husband of the deceased, was trying since long to persuade the wife to live with him as she had deserted him and was living with her parents for the past more than two years. He had gone and brought her willingly to his house. There was a feast in the night on her return and then the couple went to bed. In the early hours of the next morning at 1 o'clock when appellant No. 1 woke up he found her missing. A report (Ex.P/8-C) was, therefore, lodged by accused Sukhchand at 4.30 in the morning at Police out-post Khairlanji, Police Station Rampayali about the fact that the deceased, wife of appellant No. 1, was missing. The accused Sukhchand, brother of appellant No. 1, lodged a subsequent report on 23.11.1988 at about 9.30 in the morning in the same police station that when the deceased was searched she was found dead in a well near their house. The said report was recorded as Merg intimation (Ex.P/9). Thereafter a first information report described as Dehati Fariyad (Ex.P/13) was lodged by Jaipal, father of the deceased. An inquest memo (Ex.P/10) was prepared and the body was sent for postmortem. The doctors namely, Dr. R.L. Bansod (P.W. 7) and Dr. G.C. Sharma (P.W. 8) performed the autopsy and gave postmortem report (Ex.P/7), the contents of which are important and need to be reproduced as the entire case of the prosecution and defence rests on the findings contained in the postmortem report.
4. The internal organs were seen by the autopsy surgeons. They did not find any water in the lungs or in the stomach. The stomach was found with 100-150 m.l. white liquid containing green vegetable (Bhaji). The small intestine was empty and large intestine contained some feacal matters. The relevant part of the postmortem report is as under :
"Body of Young female. Mouth closed, eyes closed. Conjunctiva congested. Pupil dilated. Nose ring on the left nostril yellow. Bhichhawa of white metal was present on both feet 2nd toe. One darty thread on the neck. One mole containing black and yellow Mungas was lying loose over the chest. Absent of the froth over the nostril even after compression of the chest. Skin of the hands and feets shows bleached corrugated and soddan appearance i.e. washerman's hand and feet appearance. Rigor mortis was present in all the four limbs and well developed. Abdomen partly distended. Deceased was wearing one printed cotton Sari and white blouse. Right hand ten Bangles and left hand nine bangles present. Blouse blood stained, and Sari one end blood stained. Nails of the hands bluish in colour.
No marks of injuries were seen anywhere of the body.
xxx xxx xxx
Thorax :
(1) Wall, ribbs and cartilage : Healthy
(2) Pleurae : Healthy
(3) Larynx and trachea : Empty, red in colour mucus membrance.
(4) Right lung : Lungs are not distended like bal-
(5) Left lung loon, Non-oedematous pale grey
coloured on section absent of
white tenacious froth.
(6) Paricardium : Healthy.
(7) Heart : Both chambers empty.
(8) Large Vessels : Healthy.
Abdomen :
(1) Walls : Healthy.
(2) Peritoneum : Healthy
(3) Mouth and Buccle cavity : Healthy
(4) Stomach and its contents : Contains 100 to 150 m.l. white
liquid containing green
vegetable (Bhaji).
(5) Small intestine and its
contents : Empty
(6) Large intestine and its
contents : Contains feacal matters.
(7) Lever : Congested.
(8) Spleen : Healthy.
(9) Kidney : Healthy.
(10) Urinary Bladder : Empty.
(11) External and internal : Uterus and overy intact, non-genitals gravid,
healthy."
The two doctors who signed the postmortem report, as a result of their joint investigations, were unable to form any definite opinion about the cause of death. They have recorded their opinion as under :
"In the absence of disease and injury, no definite opinion can be given as to the cause of death. Viscera preserved for the chemical examination. Time since death 24 to 48 hrs. at the time of p.m. conducted." The date of postmortem report is 24-11-88 at 6.30 p.m.
5. The prosecution examined Urmilabai (PW 1) Bhabhi of deceased Dhurpatabai who was with her at the paddy field when the accused No. 1 along with the co-accused came with a cart and alleged to have forcibly carried away the deceased to their village. Urmilabai (PW 1) in her testimony stated that the deceased was married to appellant No. 1 when they were children. When they became adults a Gauna ceremony was performed about four years back. The deceased thereafter lived with the husband for a year or so. For the past one and half years she was living with her parents. The deceased was always willing to live with the husband provided he treated her well. The husband during their separation had instituted proceedings u/s 100 Cr. P.C. in the Court ' of Executive Magistrate for her custody. The deceased along with her father attended the Court of the Magistrate but the husband remained absent and, therefore, the proceedings were dropped. This witness stated that at the time when they were at the field and the accused came with a cart, appellant No. 1 caught hold of the deceased, gave her blows with kicks and fists when she objected. They thereafter forcibly put her in the cart. The witness objected as to why she should not be honourably taken from the house whereupon the accused teased the witness that she should also sit along with them. The deceased at that time was terrified. The witness then reported the matter to her husband and in-laws. The father of the deceased did not take it seriously saying that the appellant No. 1 had taken his own wife and is likely to keep her well. The parents of the deceased, therefore, did not make any report to the police of the alleged act of abduction. In cross-examination, to specific question No. 12, this witness replied that when she returned home and narrated the fact of abduction of the deceased to her in-laws, they stated that he had taken his own 'Mal' and they thereafter took meals and went to bed.
6. Jaipal, father of the deceased has also been examined as P.W. 5. He substantially corroborated the version of his daughter-in-law Urmilabai (PW 1) on the incident of alleged abduction. The father has, however, stated that the deceased used to report that appellant No. 1, her husband, always beat her and was also demanding motor-cycle and had threatened that if that is not brought he would murder her. He admitted that when the fact of abduction was reported, he had initially said nothing as he (appellant No. 1) had, according to him, taken his property or 'Mal'. They, therefore, made no report to police and went to bed as if nothing abnormal had happened.
7. Surprisingly, prosecution has examined Dasvantabai (PW 6), wife of accused Sukhchand. This witness stated that the deceased was not continuously living with the husband as the family of husband was poor and possessed small piece of land with them. The deceased also refused to work with other members of the family. Her father had taken her to his village and thereafter she did not return. This witness stated that when the wife was brought by appellant No. 1, on the fateful day, there was a feast. After taking dinner, all the members of the family went to bed. The appellant No. 1 with the deceased as his wife slept in a separate room. Sometime in the mid-night, around 3 o'clock appellant Shobhanlal woke up and told other members of the family that the deceased was not seen anywhere in the room or in vicinity.
8. Dr. R.L. Bansod, the autopsy surgeon his post-mortem report was not examined or cross-examined at any considerable length because the opinion of both the doctors was not definite about cause of death. The Court, however, posed searching questions, as many as 45 in number, to ascertain the likely cause of the death of the deceased. Dr. Bansod, however, remained firm in his opinion that condition of body in the absence of external or internal injuries does not indicate that the death was homicidal. He, however, did not rule out that the death might have been caused because of sudden cardiac arrest before the body fell in the water in the well and submerged. He also stated that there are cases of what is called 'dry drowning' were soon after the body falling and before touching the cold water the person dies. In such cases when the body goes inside the water the person cannot swallow any water to be found in the contents of the lungs or stomach.
9. The learned trial Judge enumerated several circumstances in paragraph 102 of his judgment to hold that the circumstantial evidence is sufficient on record to conclusively hold the appellant No. 1 guilty of murder and the other appellants guilty of abduction, as they acted with common intention with appellant No. 1 for abducting the accused for committing her murder. The circumstances enumerated by the learned trial Judge are-- (1) prior to the date of incident the deceased was living with her parents; (2) so long as she lived with the husband she was treated with cruelty as she had been reporting to her parents; (3) the accused was interested in obtaining divorce from the deceased and he had so threatened on which a police report was made by her on 24-5-1988 in the police out-post Khairlanji as per Rojnamcha Sanha (Ex.P/6); (4) the appellant No. 1 had instituted proceedings for issuing search warrant against the deceased for obtaining her custody, but he himself remained absent and did not prosecute the same; (5) the husband thereafter did not institute any legal proceedings for restitution of conjugal rights; (6) the husband had number of times sent her threats that he would bring her forcibly and obtain divorce from her; (7) on 22-11-1988, as per evidence of Urmilabai (PW 1), the deceased was forcibly abducted from her field; (8) on 22-11-1988 in the night, the husband and wife slept in a room; (9) when she was not found at 1 o'clock in the night, instead of finding out her whereabouts from her parents, a report was straight-away made to the police out-post Khairlanji; (10) at the estimated time of her death she was in the company of her husband; (11) there is no evidence that the deceased died by drowning or due to shock of sudden fall or cardiac arrest before falling in the well; (12) the spot map showing the situation of the well makes it unlikely that there was any accidental fall of the deceased in the well; (13) the husband was bent upon committing murder of the wife to get rid of her; (14) the plea of the husband that after the deceased was found missing in the night he had launched a search and had also gone to the father of the deceased has been found to be untrue. According to the learned trial judge, the above circumstances unmistakably prove the guilt of the accused.
Learned senior counsel Shri Surendra Singh, appearing for the accused, submits that in the absence of proof of death being homicidal, the learned trial Judge was in serious error in convicting the accused on the alleged circumstantial evidence which was also insufficient to conclusively prove the guilt of the accused. Reliance is placed on The State of Punjab v. Bhajan Singh and Ors. (AIR 1975 SC 258). The learned counsel for the accused also argued that none of the accused can be convicted for offence under Section 364 I.P.C. in the absence of proof of alleged murder of the wife by the main accused-appellant No. 1 Shobhanlal. It is argued that the ingredients of offence under Section 364 is abduction of a person with intention to murder him or to put him in danger of being murdered. It is submitted that the accused No. 1 with his alleged companions had brought home his own wife with intention to restore conjugal relationship between them. There is no proof that she was murdered and, therefore, the accused are also liable to be acquitted of the charge under Section 364 and Sections 149 and 147 I.P.C.
10. We have also heard Shri A.K. Verma, Panel Lawyer for the State, who made some efforts to support the judgment of conviction passed by the Trial Court.
11. The most important question is whether there is evidence on record to prove that the deceased Dhurpatabai met a homicidal death ?
12. The learned trial Judge has very meticulously subjected the autopsy surgeon to a long examination, yet nothing could be brought out to show that the death of the deceased was homicidal. The learned trial Judge has also passed severe structure against the autopsy surgeons in conducting the postmortem and in not preserving the viscera of the deceased. The learned trial Judge has sent a copy of the judgment with recommendation to the concerned department of the government to hold necessary enquiry against the autopsy surgeons.
13. We have carefully gone through the report of the autopsy surgeons and their evidence recorded in the case. Without pronouncing upon the justification for the trial Judge to direct an enquiry into their conduct, we do not find the opinion given by the doctors to be contrary to the medical opinion of experts on the subject. Relevant extracts from Modi's Medical Jurisprudence were read before us by the parties in which also it has been stated that in several cases of dead bodies found in the well instances are not uncommon where the cause of death remains a mystery. In the authoritative work of Dr. C.K. Parikh, Medicolegal Postmortems in India, 1985 Edn., the relevant part of the discussion is contained in pages 67 to 73 under the heading "DROWNING : IMMERSION". Dr. Parikh in his text book on medical jurisprudence, named above, states that 'typical drowning' indicates obstruction of air passages and lungs by inhalation of fluid and is known as wet drowning. Typical signs of drowning are found in such cases at autopsy. The other term is 'atypical drowning' which indicates conditions in which there is very little or no inhalation of water in the air passages, and includes-- (a) dry-drowning, (b) immersion syndrome (vagal inhibition), and (c) submersion of the unconscious. In the case of atypical drowning including dry drowning, when water enters the nasopharynx or larynx, it triggers intense laryngeal spasm. Little or no water therefore enters the air passage or lungs and death may result from asphyxia. In immersion syndrome (vagal inhibition) as a result of sudden impact with cold water, vagal inhibition causes death from cardiac arrest. There is also a possibility of submersion of the unconscious. This is possible where a victim suffers from heart disease or coronary atheroma or dizziness due to essential hypertension. The rupture of cerebral aneurysm or the onset of cerebral haemorrhage may also cause abrupt collapse. As a rule, in such cases, complete picture of death by drowning is not found. Ballooning of the lung may be absent and the formation of foam may be negligible. The medical opinion of writers of text books on medical jurisprudence also supports the view of autopsy surgeons examined in the case that signs of drowning are absent in bodies that are recovered from water-- (1) if the person died of shock or laryngeal spasm; (2) if circulation continued for a short time after removal of the victim from the water; (3) if the victim was killed and then thrown into the water; and (4) if the body is decomposed. Similarly, minimal signs are found in submersion of the unconscious.
14. In the instant case, the findings in the Postmortem report of the autopsy surgeons will have to be accepted for or against the accused. Both the surgeons are not definite about the cause of death. Even on the circumstantial evidence, there are three possibilities-- (i) the deceased while in the bed room went into a shock and either became unconscious or died of cardiac arrest because of sexual attempts on the part of the husband; she was then thrown in that condition into the well by the accused; (ii) in the mid-night after taking food while she was in the bed room sleeping with her husband, she got up in the night unknown to others sleeping nearby and thinking that she might be forced to live with the husband against her wish went to the well and committed suicide; (iii) she went out in the night unknown to other members of the family to escape and while proceeding in the direction of the well fell accidentally inside it and before she could swallow any water died due to impact of the body with the water.
15. The rule of circumstantial evidence to base conviction is settled that all circumstances should unerringly point to the guilt of the accused leaving no hypothesis of his innocence. [See--Palvinder Kaur v. State of Punjab (AIR 1952 SC 354); and Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79) which has placed reliance on earlier decision in Gambhir v. State of Maharashtra, (1982) 2 SCC 351 = AIR 1982 SC 1157].
16. If any of the aforesaid causes would have resulted in the death of the deceased, the only conclusion against the accused cannot be drawn on the basis of the postmortem report that he was responsible for killing and throwing of the deceased into the well. The accused-appellant No. 1 had to be given the benefit of doubt. As has been rightly stated on behalf of the accused that even if the husband in order to screen the circumstances in which the deceased died, after her natural death due to shock, threw the body into the well to dispose of the same, no offence, much less offence under Section 302 I.P.C., was made out.
17. The learned trial Judge has proceeded on an imaginary hypothesis that the deceased might have been smothered by pillow or blocking her breathing by some other means to kill her and then her dead body might have been thrown into the well. There is no basis for such a hypothesis in the medical report. The doctors have clearly opined that there were no marks of asphyxia and the death having been caused by strangulation or blocking the breathing of the deceased by use of pillow or any cover. The circumstances also do not indicate that the accused was interested in killing the wife. As alleged by the father of the deceased and members of her family, the husband was interested, if at all, in forcing her to live with him or to obtain a divorce from her. If that was the intention attributed to the accused-husband, it was most unlikely that on the very first night on her return she would have been done to death in the night before he could have accomplished his design of obtaining a divorce from her. The circumstances, on the contrary, show the possibility of the deceased dying for other causes like suicide, accidental fall, or natural death due to shock suffered by her because of the manner in which she was forcibly carried, confined and made to sleep with the accused-husband.
18. The trial Judge has severely criticised the conduct of the autopsy surgeons and have made directions for enquiry into their conduct but that would not be a circumstance to infer that the death of the deceased, was homicidal and the husband was responsible for the same. In our considered opinion, therefore, the accused-appellant No. 1, the husband, and the other accused are entitled to benefit of doubt and deserve to be acquitted of the charge under Sections 302, 302/149 and 147 of the I.P.C.
19. The next question remains is as to whether the trial Judge was justified in convicting the accused under Section 364 of the I.P.C.. The ingredients of the offence under Section are that a person is abducted with intention to murder or to put him in danger of being murdered. As we have held that the prosecution miserably failed to prove that the death of the deceased was homicidal, all the accused persons cannot be convicted under Section 364 of the I.P.C. for abducting the deceased with intention to murder her. The evidence on record does not show that all the accused persons had any intention to abduct the deceased with intention to murder her. The evidence on record, on the contrary, shows that she was abducted to force her to live with the husband and if necessary to make her agree for a divorce.
20. The last question is whether the accused are at all guilty of any other offence and can be convicted for the same. The learned counsel for the accused submits that the accused cannot also be convicted under Section 365 I.P.C.. The ingredient of that section is that a person is abducted with intent to cause that person to be secretly and wrongfully confined. It is argued that the appellants had brought back the wife of appellant No. 1 to the matrimonial home. There was no intention to secretly or wrongfully confined her. The intention was only to restore conjugal relationship between the husband and wife and if at all, as alleged, to force her to sign divorce papers. In any of the said eventualities ho offence under Section 365 I.P.C. is made out.
21. We have given a thoughtful consideration to this aspect of the case argued before us. The evidence of Urmilabai (PW1), Bhabhi of the deceased and Jaipal (PW 5), father of the deceased, appears reliable that the appellant No. 1, husband of the deceased, had been sending messages and threats to forcibly bring back the deceased to his house and to obtain a divorce from her. There is no ground to disbelieve the testimony of the Bhabhi and father of the deceased that while the deceased was working in the paddy field, her husband, the appellant No. 1, along with other co-accused came in a cart and forcibly made her to sit in it for being carried to her matrimonial home. Urmilabai (PW 1) has stated in her testimony that at that time the deceased was terrified and was in fact trembling in fear. She also resisted their attempt in forcibly taking her to their house. On these facts, 'abduction' as defined in Section 362 I.P.C. has been proved. It is no doubt true that abduction as such is not punishable unless it is done with certain intent punishable under Sections 364, 364A, 365, 366 or 366A I.P.C. See : Vishwanath v. The State of Uttar Pradesh (AIR 1960 SC 67).
22. We have given a very careful thought to the submissions made on behalf of the accused that since the deceased was not 'secretly confined' even though 'wrongfully confined', no offence under Section 365 I.P.C. is made out. The argument advanced on behalf of the accused does not sound reasonable.
23. From the evidence we find that the deceased was abducted by her husband, appellant No. 1, and the co-accused, with intention that she would be forced to live with the husband and, if she did not agree, to compel her to agree for divorce. The intention to secretly and wrongfully confine' has to be gathered from the conduct of the abductor. If the abductor had intention to 'secretly and wrongfully confine' the abducted person, the act would be within the mischief of Section 365 of the Code, may be that the abducted person in fact was not 'secretly and wrongfully confined'. If at the time of abduction the intention of the husband and his companions was to secretly and wrongfully confine the deceased, the offence would be made out. The word 'secretly' has to be given a reasonable meaning with due regard to the physical and mental condition of the victim of abduction. If the accused abducting had intention to confine her in a place not likely to be known to the persons who ordinarily should have known about her, the offence is complete with the existence of the intention on the part of the accused at the time of abduction. In the instant case, the deceased was since long living with her parents. She was not willing to live with the husband at the time when she was abducted. She resisted the moves of the husband and his companions and was terribly afraid. She was taken forcibly to the house of the husband without knowledge of her parents and Bhabhi with whom she was living at the time the abduction took place. The deceased was the wife of accused No. 1, but that did not give him any right to carry her away against her wish and to force her to live with him. Whatever civil rights the husband or the wife possessed under the matrimonial law, the confinement of the wife after such abduction was 'wrongful' being against her wish and 'secret' being at a place not known to her parents and other relations with whom at the time of abduction she was living. In our opinion, therefore, appellant No. 1, her husband, and his companions, the co-accused, deserve to be convicted for offence under Section 365 read with Sections 149 and 147 I.P.C.
24. Since the offence under Section 365 I.P.C. is a lesser offence than Section 364 I.P.C. with which the accused were charged, we can convert their conviction from Section 364 to 365 I.P.C. and sentence them on the basis of such conviction. For the aforesaid view, we respectfully seek support from the decision of the Supreme Court in Faiyaz Ahmed and Ors. v. State of Bihar (AIR 1990 SC 2147) and the decision of the Allahabad High Court Bhagwat and Ors. v. State (1971 Cri. L.J. 1222).
25. So far as the sentence is concerned, appellant No. 1 Shobhanlal, husband of the deceased is undergoing sentence and is in prison. He has already suffered the maximum prescribed seven years imprisonment for offence under Section 365 I.P.C.. The other accused who were accomplices are on bail. They have also suffered some period of sentence of imprisonment before they were enlarged on bail by this Court.
26. Consequently, we partly allow this appeal and set aside the conviction of the appellants under Sections 302 and 302/149 I.P.C. and instead all the accused persons are convicted under Section 365 read with Sections 149 and 147 I.P.C. The appellant No. 1 has already suffered more than the maximum seven years of imprisonment. He is, therefore, sentenced to R.I. for 7 years and be released on completion of that sentence. The other co-accused persons are sentenced to imprisonment for the period already undergone by them with a fine of Rs. 200/- each as imposed by the Trial Court. In default of payment of fine, they shall undergo further R.I. for four months.