Chattisgarh High Court
Sanjay Kumar Kesharwani vs The State Of Chhattisgarh on 21 January, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 1155 of 2002 AND Criminal Revision 606 of 2002
1 Sanjay Kumar Kesharwani
2 Smt Tulsi Bai
3 Nirmal Kumar Gupta
...Petitioners
Versus
1 The State of Chhattisgarh
2 Dau Ram
3 Suryakant
4 Smt Rakumani Bai
5 Smt Butani Bai
...Respondents
! Mr Prafull Bharat,Mr Ghanshyam Patel
^ Mr V V S Murthy, Mr V C Ottalwar
CORAM: HONBLE MR T P SHARMA AND HONBLE MR N K AGARWAL JJ
Dated: 21/01/2010
: JUDGEMENT
Criminal appeal under Section 374 2 of the Code of Criminal Procedure 1973 Criminal revision under Sections 397 401 of the Code of Criminal Procedure 1973 The following judgment of the Court was passed by T.P. Sharma, J: -
1. Since the aforesaid criminal appeal and the criminal revision are arising out of the same judgment dated 30-9-2002 passed by the 3rd Additional Sessions Judge (Fast Track Court), Janjgir, in Sessions Trial No.113/2002, they are being disposed of by this common judgment.
2. Criminal Appeal No.1155/2002 has been filed on behalf of appellant Sanjay Kumar Kesharwani against the judgment of conviction & order of sentence dated 30-9-2002 passed by the 3rd Additional Sessions Judge (Fast Track Court), Janjgir, in Sessions Trial No.113/2002, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of offence under Sections 302 & 201 of the I.P.C., sentenced him to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for two years and to undergo R.I. for two years, respectively.
3. Criminal Revision No.606/2002 has been filed on behalf of petitioners Smt. Tulsi Bai & Nirmal Kumar Gupta, mother & brother of the deceased, respectively, against the judgment of acquittal dated 30-9-2002 passed by the 3rd Additional Sessions Judge (Fast Track Court), Janjgir, in Sessions Trial No.113/2002, whereby learned Additional Sessions Judge has acquitted the accused/respondents No.2 to 5 of the charges alleged against them.
4. Judgment is impugned by appellant Sanjay Kumar Kesharwani on the ground that without any credible and clinching evidence especially relating to circumstantial evidence against the appellant the Court below has convicted & sentenced him as aforementioned.
5. The revision petitioners have impugned the judgment on the ground that the Court below has not considered the evidence available on record sufficient for conviction of respondents No.2 to 5 and thereby committed illegality.
6. Case of the prosecution, in brief, is that appellant Sanjay Kumar is husband of deceased Kanti Bai. Respondent No.2 Dau Ram & respondent No.4 Rukmani Bai are father-in-law & mother-in-law and respondent No.3 Suryakant & respondent No.5 Butani Bai are elder brother-in-law & sister-in-law (jeth jethani) of deceased Kanti Bai. On the fateful day of 26-12-2001 at about 8 a.m. Kanti Bai, who was married with appellant Sanjay Kumar two years prior to the date of incident, died as a result of burn injuries in the house of the appellant. Appellant Sanjay Kumar reported the matter to Police Station Shivrinarayan vide merg Ex.P-18 in which it has been mentioned that while he was sitting in the shop his father Dau Ram informed him over telephone at about 8.15 a.m. that toilet is closed from inside and smoke was coming out from the toilet, on which he went to house and broken the door of the toilet. Kanti Bai was found dead as a result of burn injuries. On the basis of merg, the Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-1, inquest over the dead body of the deceased was prepared vide Ex.P-2. Dead body was sent for autopsy to the Assistant Surgeon, Shivrinarayan vide Ex.P-17 and autopsy was conducted by the team of doctors Dr. M.L. Sahu (PW-10) & Dr. N. Prasad vide Ex.P-4, who found following injuries on the person of the deceased: -
O 96% superficial burns; O dead body was at the stage of pugilistic boxer attitude, singling of hairs; O redline not present between burnt and un-burnt parts; O smell of kerosene was present on burnt piece of underwear found over the body; O faecal matter came out from anus; O tongue protruded, but not turned into black colour; O mouth was closed; and O eyelids were half open.
On internal examination, neck & trachea were congested, but carbon particle was not found inside the neck, trachea & larynx. Death was due to asphyxia. Viscera was preserved for further test to know about presence of carboxyhaemoglobin in blood.
7. Two liters of kerosene found inside the jerry can, one matchbox, two burnt match sticks, one small crowbar, one old plastic mug, burnt piece of terricot sari, piece of petticoat, un-burnt bed sheet, burnt piece of necklace and bucket were seized from the spot vide Ex.P-3. Query was made to the doctors on which they opined that death as a result of asphyxia was due to strangulation or suffocation and death was homicidal in nature, vide Ex.P-7. Photographs of the spot and dead body were taken vide Exs.P-10 to P-14 by Raj Kumar Studio, same were recovered vide Ex.P-8A along with negatives Ex.P-16. On the basis of merg intimation, F.I.R.
was registered vide Ex.P-21. Sealed articles received after autopsy were seized vide Ex.P-22. Seized articles were sent for chemical examination vide Ex.P-28. Patwari prepared spot map vide Ex.P-8. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Janjgir, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial.
8. In order to prove the guilt of the appellant & respondents No.2 to 5, the prosecution has examined as many as fifteen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. Defence has examined Rajesh Kumar Gupta (DW-1), brother-in-law of accused/respondent No.3 Raju @ Suryakant, who has deposed that on 25-12-2001 Suryakant & Butani Bai came to his house at Baradwar, they stayed till 26- 12-2001 and on 26-12-2001 at about 10.30 - 11 a.m. they proceeded for their house by motorcycle.
9. After affording opportunity of hearing to the parties learned Additional Sessions Judge has convicted & sentenced appellant Sanjay Kumar as aforementioned and acquitted respondents No.2 to 5.
10. We have heard Mr. Prafull Bharat, learned counsel for appellant Sanjay Kumar; Mr. Ghanshyam Patel, learned counsel for revision petitioners Smt. Tulsi Bai & Nirmal Kumar Gupta; Mr. V.V.S. Murthy, learned Deputy Advocate General for the State; and Mr. V.C. Ottalwar, learned counsel for respondents No.2 to 5. We have perused the judgment impugned and record of the Court below.
11. Mr. Prafull Bharat, learned counsel appearing on behalf of appellant Sanjay Kumar, vehemently argued that the case is based on circumstantial evidence. In case of circumstantial evidence, the prosecution is required to prove the complete chain of circumstances that there is no escape from the conclusion that in all human probabilities, the crime was committed by the accused and none else. Learned counsel further argued that the appellant has lodged merg intimation in which he has mentioned that he was present in his shop, he was informed by his father on telephone about the incident, then he went to his house where the burnt dead body of the deceased was found inside the toilet, the toilet was closed from inside, they have broken the door of the toilet and took out the dead body from the toilet. According to the finding of the Court below, three circumstances were against the appellant viz., (1) in his examination under Section 313 of the Cr.P.C. he has not supported the fact of merg intimation that he has received telephone call from his father, but has deposed that the telephone call which he received was not clear and it appears that it was from his father which shows that he is concealing the truth; (2) presence of two liters of kerosene in the jerry can which was unnatural; and (3) the dead body was not found inside the toilet, but was found in the courtyard and the accused has removed the dead body from the toilet. Learned counsel also argued that these circumstances are virtually not the circumstances against the appellant sufficient for drawing inference that the appellant is the person who has committed the offence and except the appellant nobody has committed the offence.
12. Mr. Prafull Bharat, learned counsel appearing on behalf of appellant Sanjay Kumar, contended that in the present case, autopsy was conducted by Dr. M.L. Sahu (PW-10) along with another doctor, Dr. N. Prasad, vide Ex.P-4. They have not found any injury other than the burn injuries. The evidence of Dr. M.L. Sahu (PW-10) shows that with a view to confirm cause of death whether the burns were ante-mortem or not, viscera was preserved. But the prosecution has not obtained the chemical analysis report to show whether carboxyhaemoglobin was present in blood or not which was the conclusive proof relating to ante-mortem or post-mortem burns. In case of sudden death as a result of shock at the time burn, carbon particles may not be found inside the trachea and other internal parts of the body. The prosecution was under obligation to prove its case beyond all reasonable doubts and to prove that the burn was post-mortem and the death was ante-mortem as a result of injury over neck, but no injury over neck was found. The prosecution has not proved that the burns were post-mortem. In the present case, the prosecution has utterly failed to prove circumstantial evidence against the appellant.
13. Mr. Prafull Bharat, learned counsel appearing on behalf of appellant Sanjay Kumar, placed reliance in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1 in which while dealing with the question of circumstantial evidence, the Apex Court has laid down some conditions relating to proving of circumstantial evidence. Learned counsel further placed reliance in the matter of Nesar Ahmed and another v. State of Bihar2 in which it has been held by the Apex Court that in case of circumstantial evidence in murder case the prosecution is required to lead unimpeachable evidence to show that the accused was present in the house where the deceased died as a result of burn injuries. Learned counsel also relied upon the Modi's Medical Jurisprudence and Toxicology relating to presence of pugilistic boxer attitude of the dead body which is suggestive of the fact that burns were ante-mortem.
14. On the other hand, Mr. V.V.S. Murthy, learned Deputy Advocate General appearing on behalf of the State, vehemently argued that the circumstantial evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant is the person who has committed the offence and except the appellant, nobody has committed the offence. The doctor has categorically and specifically opined that burn injury was post-mortem and death was as a result of strangulation.
15. Mr. Ghanshyam Patel, learned counsel appearing on behalf of the revision petitioners, argued that evidence of the doctor & other witnesses are sufficient for drawing inference that the appellant along with respondents No.2 to 5 had committed the offence of murder of deceased Kanti Bai in furtherance of the common object of unlawful assembly formed by them and all the accused are liable for commission of offence, but the Court below has illegally acquitted respondents No.2 to 5 and thereby committed illegality.
16. Mr. V.C. Ottalwar, learned counsel appearing on behalf of respondents No.2 to 5, vehemently opposed the revision petition and argued that the prosecution is under obligation to prove its case beyond all reasonable doubts. In case of conviction based on circumstantial evidence, the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
17. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record.
18. In the present case, the prosecution has tried to prove the fact that deceased Kanti Bai died as a result of suffocation/strangulation and not as a result of ante-mortem burn injuries, but according to the appellant & respondents No.2 to 5, deceased Kanti Bai died as a result of burn injuries and burn was ante-mortem. Even otherwise, the prosecution was under obligation to prove that burn injury was not ante-mortem in nature and deceased Kanti Bai died as a result of suffocation or strangulation.
19. In the present case, conviction of the appellant is based on circumstantial evidence. Deceased Kanti Bai was married to appellant Sanjay Kumar two years prior to the date of incident and she died on 26-12-2001 in the house of the appellant & respondents No.2 to 5. Appellant Sanjay Kumar is husband of the deceased and respondents No.2 to 5 are relatives of husband of the deceased. Autopsy was conducted by Dr. M.L. Sahu (PW-10) vide Ex.P-4. Inquest was prepared by Vindhyachal Singh (PW-14), Assistant Sub Inspector, vide Ex.P-2.
20. Dr. M.L. Sahu (PW-10) has deposed that on 26-12-2001 at about 4.35 p.m. he along with Dr. N. Prasad conducted autopsy on the dead body of Kanti Bai, 96% superficial burns were found over her body; chest, neck, face & head were charcoaled; the dead body was in pugilistic stage which was normally found in case of ante-mortem burns; singling of hairs was also found; there was no redline between burnt & un- burnt parts of the body; burnt piece of underwear found over the body was removed and presence of kerosene smell was found in the burnt piece of underwear; faecal passed from anus; tongue was protruded but was not stained; another injury except burn injury was not found over the body and no injury was found over neck.
21. According to the opinion of doctor and Ex.P-4, cause of death was post-mortem burn injury which is not correct because any injury after the death of a person would not cause the death of person. It appears that according to the opinion of doctor, burn injury was post-mortem and not the cause of death. Mode of death was asphyxia.
22. Dr. M.L. Sahu (PW-10) has deposed in his evidence that viscera was preserved and presence of carboxyhaemoglobin in blood may be confirmed by examination of viscera. In case of ante-mortem burn injury presence of carboxyhaemoglobin would be the condition precedent. The doctor has admitted in para 16 of his cross-examination that if a person would be in contact of high flame continuously, there may be symptom of post-mortem burn over the dead body. He has explained in para 19 that presence of redline between the injury and pugilistic attitude is also helpful in deciding whether the injury is ante-mortem or post-mortem. In case of sudden death due to shock before spreading of flame, carbon particles may not be found inside the respiratory track. He has further admitted in para 24 of his cross-examination that they have not found any symptom of strangulation, but he has denied the suggestion that under pressure of the prosecution & police officers they have prepared false report and gave false opinion.
23. According to autopsy report Ex.P-4 and evidence of Dr. M.L. Sahu (PW-10), 96% superficial burn injuries were found over the body of the deceased; attitude of the body was pugilistic boxer; redlines were not present between burnt & un-burnt parts of the body; faecal came out from anus; tongue was protruded but there was no blackening over tongue; mouth was closed; eyes were semi-closed; trachea, larynx & lungs were congested; no carbon particle was found inside trachea & larynx; coronary veins were prominent; and liver, kidney & spleen were also congested. In case of ante-mortem burn, line of redness between burnt & un-burnt parts termed as `vital reaction' is a prominent feature. If the body was not burn in open place, then in case of ante-mortem burn, the person will inhale soot carbon particles and the same would be found inside the larynx, trachea, main bronchia and smaller bronchia. Even in case of post-mortem burn, if mouth was open, soot carbon particles may be found in mouth & throat but not in esophagus. The pugilistic attitude of the body is also a sign of ante-mortem burn, in case of burn injury. A body that is badly burnt assumes the appearance known as `pugilistic attitude' and this is due to heat stiffening and contraction of the muscles, causing the arms to become flexed at the elbows and hands clenched, the head slightly extended and knees bent. The appearance resembles the position adopted by a person engaged in a fight and has led on occasions to suspicion that death occurred during some violent crime. In fact, the body assumes this position when fire starts.
24. The prosecution has failed to produce the viscera report to show the presence of carboxyhaemoglobin in blood. In the present case, tongue was protruded, but no blackening of tongue was found and faecal passed from anus. According to the case of defence, ante-mortem burn injury was caused inside the bathroom of which length & breadth was 1.90 mts. x 1 mt. and height was 2.50 mts. as per the map Ex.P-8 and evidence of Patwari Ramesh Prasad Sahu (PW-11) which has not been disputed by any of the parties. In other words, length & breadth of the toilet was about 6 ft. x 3 , ft. and height was 8 + ft. Size of the toilet was very small and if some person inside the toilet receives ante-mortem burn injury, definitely he or she will inhale the soot carbon particles and same must be found inside larynx, trachea & bronchia. According to autopsy report Ex.P-4, burn was superficial and temperature was not so high therefore, immediate death without inhaling or breathing was not possible. In case of burn injury, especially by kerosene oil inside a small room not in any open place, there was every chance of inhaling carbon particles. Mouth of the deceased was closed, but tongue was protruded which is not the sign of death as a result of burn, but is sign of death due to strangulation/suffocation. Pugilistic state (fighting position) is a symptom of burn injury and also the symptom of resistance. In case of suffocation, there may be mark of struggle i.e. abrasion over mouth, nose & cheeks, but if soft cloth or pillow is used to block the mouth or nostrils, then there may not be any external sign of injury and even abrasion may disappear if the body is burnt after the death.
25. In the present case, chest, neck, face & head were charcoaled. Tongue protruded but was not blackened. Faecal matter passed from anus. Absence of soot carbon particles inside larynx, trachea & bronchia; absence of redline (vital reaction); and presence of pugilistic boxer attitude, especially in case of ante-mortem burn injury inside a congested closed room, are suggestive of the fact that burn injury is post-mortem and not ante-mortem. It appears that this is a case of death by suffocation by using some soft article like pillow or cushion.
26. The aforesaid circumstances are sufficient for drawing inference that the alleged burn injuries are post-mortem and not ante-mortem, and cause of death was asphyxia due to suffocation. In these circumstances, death of the deceased was homicidal in nature.
27. As regards complicity of the appellant & respondents No.2 to 5 in the crime in question, in this case conviction is based on the circumstantial evidence. Ex.P-18 merg intimation has been lodged by appellant Sanjay Kumar in which it has been mentioned that on the fateful day his father has telephoned at about 8.15 a.m. saying that Kanti Bai was inside the toilet and smoke was coming out from the toilet, at that time, he was present in his shop, then he went to the house and broken the door of the toilet by crowbar and burnt dead body of Kanti Bai was found inside the toilet. It has also been mentioned in the merg intimation that he went to the shop at about 6 a.m.
28. Other accused/respondents No.3 & 5 Suryakant @ Raju & Smt. Butani Bai, respectively, have stated in their examination under Section 313 of the Cr.P.C. that on the fateful day they were not present in the house, they had gone to Baradwar and they came after the incident. Accused/ respondents No.2 & 4 Dau Ram & Smt. Rukmani Bai, respectively, have also stated in their examination under Section 313 of the Cr.P.C. that on the fateful day they were also not present in the house and when they came from the pond after taking their bath, they saw the dead body of their daughter-in-law i.e. deceased Kanti Bai. All the accused persons i.e. the appellant & respondents No.2 to 5 have specifically stated in their examination under Section 313 of the Cr.P.C. that they were not present at the time of incident. Appellant Sanjay Kumar has stated that he received telephone call while he was present in shop, voice was not clear and he thought that his father has telephoned him. Merg intimation Ex.P-18 reveals that after receiving the telephone call he went to his house, at that time, toilet was closed from inside, he gave sound but did not receive any reply from inside the toilet, smoke was coming out from the toilet, then he broke the door of the toilet by crowbar and burnt dead body of his wife was found inside the toilet. His father, niece (bhanji) Simmi & niece (bhatiji) Priyanka were present in the house. The facts mentioned in the merg intimation are information given by the appellant to the police, but same is not confessional statement inadmissible in accordance with Sections 25, 26 & 27 of the Indian Evidence Act. In the merg intimation, the appellant has not admitted the commission of offence.
29. Appellant Sanjay Kumar, husband of the deceased, along with respondents No.2 to 5 (in criminal revision), relatives of husband of the deceased, has been acquitted of the charge under Sections 304B read with Section 34 & 201 of the I.P.C. Respondents No.2 to 5 have also been acquitted of the charge under Section 302 read with Section 34 of the I.P.C.
30. Deceased Kanti Bai was married to Sanjay Kumar two years prior to the date of incident. The prosecution has examined the witnesses of the place of incident. Bhauprasad Sharma (PW-1) has deposed in his evidence that he came to the spot at the time of inquest. His evidence reveals that he is not witness to the incident. Raghunandan (PW-5) is also not witness to the incident. He came after the incident, at the time of investigation. Bhuvan (PW-8) & Champalal (PW-9) have deposed that they were present at the time of inquest. The prosecution has not examined other witnesses relating to the incident.
31. In this case, conviction is based on circumstantial evidence. Manishankar Gupta (PW-2), brother of the deceased, has deposed that four months prior to the incident satwasa function was solemnized at Bilaspur where the deceased & the appellant were also present, on that day the deceased told him that the appellant and his relatives used to commit cruelty & torture upon her and they used to beat her. He has further deposed that husband of the deceased i.e. the appellant used to demand Rs.50,000/- for extension of shop, though they had given sufficient dowry at the time of marriage. Nirmal Kumar Gupta (PW-3), elder brother of the deceased, has supported the evidence of Manishankar Gupta (PW-
2) i.e. his brother. Tulsibai (PW-4), mother of the deceased, has corroborated the evidence of her sons i.e. Manishankar Gupta (PW-2) & Nirmal Kumar Gupta (PW-3) and stated that her daughter has told her that the appellant and his relatives used to demand Rs.50,000/- for shop. Kamaldev Rao Dighraskar (PW-6) & Sanjay Gupta (PW-7) have deposed that the appellant & his other relatives used to commit cruelty & torturer upon the deceased and demand Rs.50,000/-.
32. In the present case, Manishankar Gupta (PW-2) - brother, Nirmal Kumar Gupta (PW-3) - brother, Tulsibai (PW-4) - mother, Kamaldev Rao Dighraskar (PW-6) - relative & Sanjay Gupta (PW-7) - relative of the deceased, have deposed that the appellant & his relatives used to commit torture & cruelty upon the deceased and demand Rs.50,000/- for extension of shop, but these witnesses have not lodged any report and they have not made any complaint before the incident. Manishankar Gupta (PW-2) has specifically deposed that the appellant & his relatives had refused to send the deceased with him, to her paternal house. The prosecution has not adduced any direct evidence relating to commission of murder of the deceased. But the evidence of these witnesses reveals that the appellant, who is husband of the deceased, used to beat the deceased, commit cruelty & torture upon her and also demand money of Rs.50,000/- for extension of shop. The evidence of Manishankar Gupta (PW-2) further reveals that the appellant along with his relatives also directed the deceased to bring money from her brothers and just before 15 days of the incident, the appellant & his relatives refused to send the deceased to her paternal house.
33. In the present case, the Court below has rejected the evidence relating to dowry death on the ground that demand of Rs.50,000/- for extension of shop is not demand of dowry in terms of Sections 3 & 4 of the Dowry Prohibition Act. Manishankar Gupta (PW-2), Nirmal Kumar Gupta (PW-3) - brothers & Tulsibai (PW-4) - mother of the deceased, have deposed that the appellant & his relatives have demanded Rs.50,000/-. These witnesses have also deposed that they used to torture the deceased in connection with demand of dowry. They have not deposed that the appellant & his relatives had only demanded Rs.50,000/-, but they deposed that the appellant & his relatives have demanded dowry and committed cruelty upon the deceased. However, the Court below has acquitted the accused persons only on the ground that demand of Rs.50,000/- for extension of shop does not fall under the category of demand of dowry, but it has not considered the other evidence relating to demand of dowry.
34. The evidence of Manishankar Gupta (PW-2), Nirmal Kumar Gupta (PW-3) & Tulsibai (PW-4) including Kamaldev Rao Dighraskar (PW-6) is sufficient for drawing inference that the deceased was subjected to cruelty in connection with demand of dowry and even 15 days prior to the date of incident, the appellant & his relatives had refused to send the deceased to her paternal house. Question of soon before her death is a question of fact and there must be some nexus between demand of dowry and death of the deceased, there cannot be any straight jacket formula or hard & fast rule to decide as to which would amount to soon before her death. The evidence of Manishankar Gupta (PW-2), Nirmal Kumar Gupta (PW-3) & Tulsibai (PW-4) clearly reveals that the appellant, who is husband of the deceased, & main accused, used to beat the deceased in connection with demand of dowry and has committed torture & cruelty upon the deceased. The Court below after appreciating the evidence available on record has acquitted the other accused respondents No.2 to 5 (in criminal revision). Evidence of the aforesaid witnesses reveals that the appellant is the main person who has demanded dowry and committed cruelty upon the deceased. According to the finding of the Court below, the evidence against other accused persons was not sufficient for their conviction.
35. Close scrutiny of the evidence of the aforesaid witnesses reveals that appellant Sanjay Kumar & his relatives have committed cruelty & torture upon the deceased in connection with demand of dowry and the appellant has refused to send the deceased to her paternal house even before 15 days of the incident. Evidence relating to respondents No.2 to 5 is inconsistent and not well corroborated by other material evidence or the evidence of each others, but there is consistency in the evidence of the aforesaid witnesses relating to the appellant that the appellant has committed cruelty & torture upon the deceased in connection with demand of dowry and even 15 days prior to the incident, the appellant has refused to send the deceased to her paternal house. The incident took place inside the house of the appellant where presence of independent witnesses was not natural. In case of family disputes or difference between relatives residing under the same roof, evidence from outside would normally be not available.
36. In case of domestic violence or harassment, normally the effected persons i.e. daughter-in-law does not report or inform anyone about the harassment or tortuous attitude of her husband or in-law's to other persons but as and when she gets the opportunity, she informs about it to her parents. The parents of the bride normally do not react immediately but wait for an opportune time, in the hope of amicable settlement between the parties and to avoid further complications which may arise in future. But when the matter becomes intolerable then the daughter-in-law or the effected lady discloses the tortuous attitude of her husband and in- law's, to the police, neighbour and other persons related to her to get the dispute resolved with their intervention.
37. This is a case of death of bride in the house of her in- laws within seven years of her marriage in abnormal condition. In case of cruelty or torture to bride, normally, the paternal relatives of bride do not take immediate step, lodge report or convene caste meeting to resolve the problem, but they used to wait and see with a view to assure & secure the safe life of the bride. Matrimonial relation is a delicate tie between husband & wife and two families. Relatives of the bride are always interested in settlement of their relations in an amicable way. Therefore, relatives of the bride including the bride used to tolerate the adverse situation unless it becomes intolerable for them.
38. In the present case conviction is based on circumstantial evidence. The Court below has considered three circumstantial evidence viz., (1) presence of 2 ltrs. of kerosene oil in the jerry can which was not natural; (2) false explanation relating to telephone; and (3) factum of removal of dead body from the toilet. After considering the above circumstantial evidence, the Court below has convicted the appellant under Section 302 of the I.P.C.
39. In case of conviction based on circumstantial evidence, the Apex Court in the matter of Sharad (supra), has laid down some essential ingredients required to be proved. Para 152 of the said judgment reads thus, "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned `must or should' and not `may be' established. There is not only a grammatical but a legal distinction between `may be proved' and `must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made:
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be' and `must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
40. In the matter of Nesar (supra), the Apex Court has held that in case of commission of murder, there must be unimpeachable evidence to show that the appellants were present in the house where the deceased died as a result of burn injuries at the crucial time. Para 6 of the said judgment reads thus, "6. Before we allow to link up the above circumstances, it is absolutely essential to first consider whether the prosecution has led any unimpeachable evidence to show that the appellants were present in the house where the deceased died as a result of burn injuries at the crucial time. In our opinion, if it is found that the presence of the appellants at the crucial time has not been established in the house, all other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of guilt of the appellants and inconsistent with their innocence."
41. In case of commission of murder, the prosecution is required to prove that the appellant has caused injury sufficient for causing death of the deceased or the prosecution is required to prove that the appellant was member of conspiracy for commission of murder. The present case is not based on the commission of murder as a result of conspiracy. Therefore, the prosecution was under obligation to prove by unimpeachable evidence that the appellant was present on the spot at the time of incident i.e. when the deceased sustained burn injuries.
42. Merg intimation Ex.P-18 lodged by the appellant reveals that on the fateful day the appellant was present in his shop, he received telephone call whereupon he came to his house and saw that fumes were coming from the toilet, the toilet was closed from inside and after breaking the door of the toilet, he took out the burnt dead body of his wife. The merg intimation further reveals that the appellant went to the shop at 6 a.m. and the incident took place at about 8 a.m. Other accused persons respondents No.2 to 5 (in criminal revision) have specifically stated in their examination under Section 313 of the Cr.P.C. that they were not present in the house at the time of incident and they came afterwards. The prosecution has not adduced evidence to show that all the accused or any of the accused was present in the house at the time of incident. Suspicion, howsoever grave it may be, cannot take the place of evidence and the prosecution is required to prove its case beyond all reasonable doubts. The prosecution cannot take the benefit of weakness of the defence.
43. The circumstantial evidence and the evidence of other witnesses are not sufficient for drawing inference that the appellant or any other accused person has committed the murder of deceased Kanti Bai. However, the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant, who is husband of the deceased, has committed cruelty & torture upon the deceased in connection with demand of dowry, before her death. Death of the deceased was abnormal and was not as a result of burn injuries. Death of the deceased was within seven years of her marriage.
44. Initially, the appellant was also charged for the offence punishable under Section 304B of the I.P.C. Dowry death is defined in Section 304B of the I.P.C. which reads as under: -
"304B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.-For the purpose of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
45. In the present case, the prosecution has successfully established that the appellant is husband of the deceased, the deceased was married to the appellant two years prior to the incident, she died in abnormal circumstances within seven years of her marriage in the house of the appellant as a result of bodily injuries sustained by her and she was subjected to cruelty & harassment by the appellant in connection with demand of dowry.
46. As regards the question of demand of dowry soon before the death of the deceased, there cannot be any straight jacket formula for deciding the question that which would amount to "soon before her death", however, there must be proximate and live-link between effect of cruelty based on dowry demand and concerned death.
47. While dealing with the expression "soon before her death", the Apex Court in the matter of Prem Kanwar v. State of Rajasthan3 has held that "soon before her death" means proximate and live-link must exist between effect of cruelty based on dowry demand and concerned death. Para 12 of the said judgment reads thus, "12. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-
jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B, IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
48. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has committed dowry death of his wife.
49. This is a criminal appeal against conviction of appellant Sanjay Kumar. The appellate Court is empowered to alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same under sub-clauses (ii) & (iii) of clause (b) of Section 386 of the Cr.P.C. While dealing with the question of re-appreciation and alteration of the finding of the trial Court, the Apex Court in the matter of Sham Sunder v. Puran and another4 has held that the High Court, exercising power under Section 386 of the Cr.P.C., in appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature. Para 2 of the said judgment reads thus, "2. The High Court, exercising power under Section 386, Cr.P.C., in an appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature or the extent or the nature and extent of the sentence but not so as to enhance the same.
The powers of the High Court in dealing with the evidence are as wide as that of the trial court. As the final court of facts, the High Court has also duty to examine the evidence and arrive at its own conclusion on the entire material on record as to the guilt or otherwise of the appellants before it."
50. While dealing with the same question, the Apex Court in the matter of Narinder Singh and another v. State of Punjab5 has held that fresh appreciation of the entire evidence is permissible under Section 386 of the Code. The Apex Court has further held that the High Court was right in overturning the judgment of acquittal of the Court of Session. Perversity is writ large on the face of the judgment of the trial court. Its appreciation of evidence is wholly inappropriate and it has acted with material irregularity. It has taken into consideration inconsequential circumstances to record acquittal of the appellants.
51. This is a criminal appeal against the finding recorded by the Additional Sessions Judge and it is open to the appellate Court to re-appreciate the finding on the basis of the evidence and to correct the finding of the Court below while exercising the appellate jurisdiction in terms of Section 386 of the Cr.P.C. As has been held by the Apex Court in the matters of Sham Sunder & Narinder Singh (supra), re-appreciation of entire evidence is permissible under Section 386 of the Cr.P.C.
52. On close scrutiny of the evidence adduced on behalf of the prosecution, the act of appellant Sanjay Kumar squarely falls under Section 304B of the I.P.C. The appellant has been tried for the offence punishable under Sections 302 read with Section 34 & 304B read with Section 34 of the I.P.C. The offence under Section 302 of the I.P.C. is a grievous offence and the offence of dowry death punishable under Section 304B of the I.P.C. is a minor offence included in the offence of murder, in case of charges of dowry death & murder.
53. Virtually, it is clear from the definition of dowry death as provided in Section 304B of the I.P.C. that dowry death is either murder or commission of suicide, but is not a natural or accidental death. With a view to punish the offenders against whom normally the evidence of murder or abetment of suicide is not possible to be adduced on behalf of the prosecution on account of death in peculiar circumstances, normally, in the house of offender, the Legislature has enacted a new provision in the year 1986. Maximum punishment provided for murder is death and minimum punishment is imprisonment for life, but maximum punishment provided for dowry death is imprisonment for life and minimum punishment is imprisonment for seven years.
54. In case of the offence proved including the offence charged, the Court is competent to convict the person for minor offence included in major offence in accordance with Section 222 of the Cr.P.C. Section 222 of the Cr.P.C. reads as follows: -
"222. When offence proved included in offence charged.-(1) When a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
55. The appellant was originally charged for the offence punishable under Section 304B read with Section 34 of the I.P.C. also. In the present case, offence under Section 304B of the I.P.C. is included in offence under Section 302 of the I.P.C. and the appellant may be convicted under Section 304B of the I.P.C. in accordance with Section 222 of the Cr.P.C. Learned Additional Sessions Judge has convicted & sentenced the appellant under Section 302 of the I.P.C. but has not considered the most material aspect of the case that there is no evidence relating to presence of the accused/appellant at the time of commission of such offence in the house or near the place of incident, but the merg intimation reveals that the appellant was not present at the time of incident in his house where the offence took place and thereby the Additional Sessions Judge has committed illegality.
56. On close scrutiny of the evidence adduced on behalf of the prosecution and the defence taken by the appellant & other accused persons, we are of the considered view that the evidence adduced on behalf of the prosecution is not sufficient for conviction of appellant Sanjay Kumar for commission of homicidal death of his wife Kanti Bai amounting to murder punishable under Section 302 of the I.P.C., but is sufficient for drawing inference that the appellant has committed the offence punishable under Section 304B of the I.P.C.
57. For the foregoing reasons,
(a) Criminal Revision No.606/2002 filed on behalf of Smt. Tulsi Bai & Nirmal Kumar Gupta, mother & brother of the deceased, respectively, is liable to be dismissed and it is hereby dismissed.
(b) Criminal Appeal No.1155/2002 filed on behalf of appellant Sanjay Kumar is partly allowed. Instead of convicting the appellant under Section 302 of the I.P.C., he is convicted under Section 304B of the I.P.C. included in the charge of Section 302 of the I.P.C. As regards the question of sentence, taking into consideration the material and evidence adduced on behalf of the parties, the sentence of custodial period i.e. detention of the appellant since 30-12- 2001 for about 8 years 1 month, is sufficient sentence, as such, the appellant is sentenced for the custodial period already undergone by him i.e. since 30-12-2001 till date. He be released forthwith, if not required in any other case.
JUDGE