Madhya Pradesh High Court
State Of M.P. vs Punaji Dhurve on 12 March, 2004
Equivalent citations: 2004(2)MPHT268
JUDGMENT S.P. Khare, J.
1. This is a reference under Section 366 of the Code of Criminal Procedure, 1973 for confirmation of sentence of death imposed upon accused Punaji for the offences punishable under Section 302, Indian Penal Code for committing murder of six persons. He has also filed an appeal under Section 374, Cr.PC challenging his conviction under Sections 302 and 436, IPC. He has been sentenced to imprisonment for ten years and to a fine of Re. 1/- for the offence punishable under Section 436, IPC. The reference and the appeal are being decided by this judgment.
2. It is no longer in dispute that accused Punaji has a house in Village Juna Padhurna in a field. This house consists of two rooms as shown in the site plan (Ex. P-11). That has been more clearly described in the map annexed to the report (Ex. P-18) of the Forensic Science Laboratory, Sagar. Accused Punaji was living with his wife and four daughters in one room. The other room was in occupation of deceased Suresh. There was an internal door between the two rooms. These have been clearly described in the map (Ex, P-18-A). There is a window in the room which was in occupation of accused Punaji. Deceased Ujrabai was wife of accused Punaji and four daughters were Anita, Sangita, Sunanda and Rangita who were between 2-10 years of age. They were sleeping in the room in the occupation of accused in the intervening night of 28th and 29th November, 2000. They died on account of the burn injuries. Suresh who was living in the other room also died in this incident and his dead body was found not in his own room but in the room in the occupation of accused Punaji. Thus, in all six persons have died. The family members of deceased Suresh were not in the house on that night. The panchnamas of the dead bodies were prepared on 29-11-2000 and these are Ex. P-1 to Ex. P-6. The dead bodies were sent for post-mortem examination. Dr. Subash Sakargay (P.W. 4) and Dr. Anil Kadwc (P.W. 19) conducted the autopsy on these dead bodies. The post-mortem reports are Ex. P-8, Ex. P-9, Ex. P-10, Ex. P-58, Ex. P-59 and Ex. P-60. Accused Punaji was also medically examined on 29-11-2000 by Dr. Vishveswar (P.W. 10) and he had also some superficial burn injuries on his body. The prosecution has not alleged any motive which impelled the accused to cause fire in his own house.
3. The prosecution case is that accused Punaji poured kerosene on the persons who have died and ignited the fire. There is no direct evidence against him. The prosecution case is based on circumstantial evidence. According to the prosecution, the fire was not accidental and the fire emanated from inside the house as per reports of the experts who inspected the scene of occurrence. The kerosene was used as the medium. The accused was inside the house when the fire took place but he came out of the house after causing the fire and again he entered his house and he was found sitting on the window shown as W. 3 in the map (Ex. P-18-A). The clothes of the accused did not burn and there was no carbon on them. It is also the prosecution case that the accused was not inside the room when the flames rose and engulfed the deceased persons. The accused did not shout for any help. The bodies of the deceased persons were found in one room and that shows that they died on account of the burn injuries when they were sleeping and they made no attempt to run away from the place of incident or to save themselves from fire.
4. The accused pleaded not guilty. He had not set up any specific defence under Section 313, Cr.PC.
5. The Trial Court in its exhaustive judgment discussed the circumstantial evidence and then concluded that the circumstances pointed out by the prosecution have been fully established. These are detailed in Para 40 of the judgment. Relying upon the circumstantial evidence the Trial Court held that it has been proved beyond reasonable doubt that the accused has committed murder of six persons named above and keeping in view the nature and the gravity of the crime, the accused has been sentenced to death. He has also been punished under Section 436, IPC as stated at the outset.
6. Learned Counsel for both the sides have been heard at great length and the documentary and oral evidence has been carefully scrutinised by us. The prosecution case, as already stated, is based on circumstantial evidence. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances can not be explained on any hypothesis other than the guilt of the accused. The Court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be can not take the place of proof. [Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67]. In Golakonda Venkateswara Rao v. State of A.P., AIR 2003 SC 2846, it has been reiterated : "it is a well-settled principle of law that in cases where the evidence is purely circumstantial in nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and must unerringly point to the guilt of the accused".
7. The circumstances on which the prosecution has relied upon and which have been upheld by the Trial Court for conviction, as stated above, can be enumerated as (a) presence of accused in his own house when the fire started (b) subsequent conduct of the accused (c) the fire emanated from inside the house and going upwards (d) kerosene was used in causing the fire (e) superficial burn injuries sustained by the accused (f) no chance of any intruder entering into the house to cause fire and (g) the fire is not accidental. There has to be an independent evaluation of the evidence on record by this Court to ascertain if these circumstances have been established beyond reasonable doubt and these are of clinching character to prove the guilt of the accused.
8. (a) Presence of accused in the house :
Manohar (P.W. 2) is son-in-law of the accused. His eldest daughter is married to him. He lives at some distance from the place of incident. He has deposed that he went to the place of incident in the company of other villagers when he came to know that the house of his father-in-law has caught fire. He saw the accused sitting on the window of the house. This window had iron bars. The accused was taken out of the house by breaking open the wall. The testimony of this witness on this point has been corroborated by Sarjcrao (P.W. 9). The accused has also admitted in his examination under Section 313, Cr.PC in reply to question No. 7 that he was inside the house at the window when these witnesses came to his house on hearing his cries.
9. (b) Subsequent conduct of the accused:
Once it is found that the accused was inside the house when he fire took place he owes an explanation how it was caused. He has not given any satisfactory explanation. He did not shout when the fire commenced. He was sitting at the window. According to Manohar (P.W. 2) the accused told him that some miscreant from outside has caused the fire. This witness is son-in-law of the accused and he is trying to save him. He has been declared hostile. Sarjerao (P.W. 9) has contradicted him. He has sworn that the accused kept quiet and did not say anything regarding the cause of fire.
10. (c) Fire emanating from inside the house and going upwards :
Dr. J.S. Yadav (P.W. 6) has testified that he inspected the spot on 29-11-2000. He is scientific officer. He found that the house consisted of two rooms. The size of each room was 15' x 12' feet. There was an internal door which connected the two rooms. The roof was at a height of 15 feet and it was of tin. It was supported by wooden poles. The outside portions of the pieces of wood were not burnt but inside portions were burnt. He formed the opinion after inspecting the spot that the fire had caught from inside. There was smoke and carbon deposits on inside walls. There was a can in which a few drops of kerosene was found. There was a stair-case made of bamboos of which upper portion was burnt. There were no traces of any explosives or any other medium by which fire could be caused from outside. There was no short-circuit also. He is of the firm opinion that six persons have died after they became unconscious because of smoke and carbon. There was no attempt on their part to save themselves. His detailed report is Ex. P-12 and the map prepared by him is Ex. P-13.
11. Dr. M.P. Gautam (P.W. 22) is the Joint Director in Forensic Science Laboratory. He has deposed that he inspected the place of incident on 8-12-2000. His report is Ex. P-73. According to this report there was soot deposition on the inner walls of the room in which dead-bodies were found. There was presence of kerosene in the articles recovered from this room. The direction of the fire was upwards and there was no chance of fire from outside the house. It was not a case of accidental fire. Kerosene was the medium for causing the fire.
12. Dr. D.K. Satpathy (P.W. 21) is the Director of Medicolegal Institute, Bhopal, He has also inspected the spot on 4-12-2000 and given his expert opinion. That is Ex. P-71. According to him the burn injuries sustained by the accused arc on account of transmitted heat. The burn injuries sustained by the victims were ante-mortem. He is also of the firm opinion that the fire was set up inside4he room and it did not come from outside.
13. The evidence of the three forensic experts mentioned above proves that the fire emanated from inside the house and it went upwards.
14. (d) Kerosene was used in causing the fire :
Kerosene was used for causing the fire. As mentioned above there was smell of kerosene from the dead-bodies of the victims and there were also traces of kerosene on the articles which have been recovered from the room. That is also a pointer in the direction that the fire could not be caused by any miscreant from outside the house.
15. (e) Superficial burn injuries sustained by the accused :
The accused has sustained burn injuries during the course of the incident. Dr. Vishveshwar (P.W. 10) has deposed that on 29-11-2000 at 4.50 P.M. he had examined accused Punaji and his report is Ex. P-19. According to this report the accused had superficial burns on both the scapular regions and there was blister formation. There was burn on the right hand of the accused at elbow joint and wrist joint. In this burn injury also there were blisters. There were burn injury on right foot. He was having blasted burn on the face. The accused was fully conscious and he was responding well. The burn injuries of the accused show that for sometime he must have been inside the house when the bodies of the victims were burning.
16. (f) No chance of any intruder entering into the house to cause fire:
The accused has submitted that some miscreants might have caused the fire from outside. But that is ruled out from the reports of the experts discussed above.
17. (g) The fire is not accidental :
Shivkumar Goswami (P.W. 15) was the Junior Engineer in M.P. Electricity Board and on inspection of the spot on 30-11-2000 he gave the opinion that there was no short-circuit in the electric lines which could cause the fire. Electric lines were intact. Therefore, the plea of accidental fire is also ruled out.
18. The circumstances discussed above have been fairly and cogently established. These circumstances are of definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. These circumstances are incapable of explanation on any reasonable hypothesis save that of the guilt of the accused. It appears that the accused after setting fire must have come out from the house and when the victims died he must have entered the room again and he was found sitting at the window inside the room when the witnesses reached the spot.
19. The prosecution has not alleged any motive against the accused for committing the act of arson in his own house. There is one intriguing feature of the case that the dead body of Suresh was found in the room where the dead bodies of the wife of the accused and his children were also found. The prosecution has not explained how the dead body of Suresh was found in the room in the occupation of the accused. The nature of burn injuries found on the body of the Suresh shows that he could not be the person who caused the fire. The accused must have committed the act of causing the fire to his wife and Suresh by pouring kerosene on them and igniting the match stick. They must have been found in some objectionable posture. The causing of death of Suresh and the wife of the accused was intentional on the part of the accused. The four daughters of the accused were sleeping in the same room. The act of the accused was "imminently dangerous" and he must be attributed with the knowledge that is was likely to cause death of his daughters.
20. The accused has not set up the plea of grave and sudden provocation. But on 30-11-2000 his statement was recorded by the police in which he took the defence that in the mid night he got up and saw deceased Suresh having sexual intercourse with his wife in the room in the occupation of the accused. He also saw that deceased Suresh continued to sleep with his wife even after sexual intercourse with her. The accused has stated that he was enraged because of the conduct of deceased Suresh and his own wife. He poured kerosene kept in a plastic can on Suresh and his wife and ignited it with a match-stick. He has further stated that he came out of the room and after sometime he came inside the room through a stair. According to him, he had seen his wife earlier also having illicit intimacy with Suresh. This statement of accused Punaji is at page 125 of the record of the Trial Court. It has not been exhibited. It appears that the accused made a similar statement before DSP Raghuveer Singh on 11-12-2000 and that is at page No. 126. The confessional statement of the accused made to the police can not be used as evidence against him in view of the ban imposed by Section 25 of the Evidence Act and Section 162, Cr.PC. But these statements can be looked into to ascertain whether the defence set up by the accused at the earliest stage is reasonable and probable.
21. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. The alleged confession can not be proved against the accused but he can use it to support his defence plea that he came out with the same defence at the earliest stage. The accused can make use of his earlier statement to show the motive or provocation with a view to extenuate the offence or sentence. That has been held in In re Mottai Thevar, AIR 1952 Madras 586, and in certain earlier decisions.
22. The accused has come forward with a definite motive for the commission of the crime. As against this, the prosecution has not alleged any motive on the part of the accused. Normally, there is a motive behind every criminal act and that is why the investigating agency as well the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. In a case of circumstantial evidence, the motive is of greater importance. The immediate impelling force on the part of the accused should be established. The accused is not required to establish his defence beyond reasonable doubt. His defence plea can be accepted if it is plausible and appears to be reasonable in the facts and circumstances of the case. In the present case the accused in his first statement came out with the story of illicit relationship between his wife and Suresh and in the absence of any other motive suggested by the prosecution it must be held that the accused caused the death of his wife and Suresh because of their illicit intimacy. The presence of the dead body of Suresh in the room in the occupation of the accused in the mid night reinforces his defence plea which he set up at the earliest stage. Therefore, we are of the firm opinion that the accused committed the act of causing the fire inside his house after seeing his wife with deceased Suresh. Though the defence of the accused is not covered by Exception 1 to Section 300, IPC, i.e., 'grave and sudden provocation', there was provocation which supplied the immediate motive to cause the death of his wife and Suresh by pouring kerosene on them and setting the fire. This provocation takes out the present case out of the category of "rarest of rare cases". Section 354(3), Cr.PC provides that in a case of death sentence, the judgment must state special reasons for imposing such sentence. It is well settled through a series of decisions of the Supreme Court that the sentence for murder is normally life imprisonment and capital sentence is an exception. That is clearly laid down in the oft-quoted decision of the Constitution Bench of the Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 and reiterated in Machhi Singh v. State of Punjab, AIR 1983 SC 957. It is only in exceptional and rarest of rare cases, death sentence can be imposed. It has been further held that a balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The circumstances which have been held to be mitigating factors are extreme mental or emotional disturbance. Recently in State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224, the Supreme Court has observed : "Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to the imposed". Again it has been eloquently observed in State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13 : "sentencing process has to be stern where it should be, and tempered with mercy where it warrants to be".
23. Where the provocation caused to the accused is grave, though not sudden, the Court is justified in not inflicting sentence of death. In the present case six persons have died because of the fire caused by the accused. There was grave provocation to him which served as a motive to commit this crime. Considering all the facts and circumstances of the case it can not be said that it comes in the category of "rarest of rare cases". Therefore, the sentence of death deserves to be substituted by the other alternative and, i.e. life imprisonment.
24. In the result, the reference for confirmation of the sentence of death of accused Punaji is rejected. His conviction under Sections 302 and 436, IPC is upheld. He is sentenced to imprisonment for life for offence punishable under Section 302, IPC, instead of sentence of death. His sentence under Section 436, IPC as imposed by the Trial Court is also maintained. The two sentences will run concurrently.