1. Appellants have filed this appeal against the judgment dated 29th April, 2003 passed by Additional Sessions Judge, Umariya in Sessions Trial No.31/2002 convicting them under sections 302/34 and 201 of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs.1000/- and rigorous imprisonment for 2 years with fine of Rs.1000/- on each count respectively.
2. Prosecution case in short is that Archana, the deceased was married to accused Sukhnidhan in the year 1999. Accused Smt. Gyan Bai was her mother-in-law and accused Deep Narayan @ Dippoo was her Dewar. For about one year after the marriage they kept her alright, but thereafter started harassing her by abusing and taunting that they did not like her. Whenever Archana went to her parents' house she told to them her agony. About four months before the incident, which occurred on 27.6.2001, when Gyan Bai and Sukhnidhan quarrelled with Archana, her father-in- law Ishwardin called her father Dwarika Prasad. Dwarika Prasad advised them to live peacefully. However, accused persons frequently misbehaved with her even before her brother Pradeep and sister Kalpana. It is alleged that on 27.6.2001 with the help of accused Deep Narayan and Gyan Bai, accused Sukhnidhan caused death of Archana by strangulating her, and with a view to screen the offence, after pouring kerosene on the dead body, set it on fire projecting it to be a case of suicide.
3. Ishwardin, father-in-law of deceased, gave written intimation of incident to police Naurozabad whereupon marg Ex.P/15 was recorded. ASI Dinesh Tripathi (PW-17), on the same day, went to spot and conducted inquest proceedings. He drew inquest memo Ex.P/2. He sent the dead body of Archana for postmortem examination to Primary Health Centre, Dhuldhuli where Dr.K.L.Baghel (PW-16) conducted autopsy and found burns on whole body of deceased. In his opinion, cause of death of deceased was asphyxia due to mechanical obstruction of air passage. Burns were postmortem. He also found a foetus of about 8-10 weeks duration in the uterus of deceased.
4. On 2.7.2001, police arrested accused Sukhnidhan and on his information, seized a can of kerosene lying concealed in the bushes of the boundary of the house. After completion of investigation, police filed charge sheet. In due course the case was committed for trial.
5. Trial Court framed the charges under sections 302/34 and 201 of the Indian Penal Code. Accused persons abjured their guilt and pleaded innocence. According to them, they never misbehaved with deceased. On 27.6.2001, at about 12 hours, Gyan Bai and Sukhnidhan on hearing groaning sounds, saw that deceased was lying behind the bathroom in burnt condition. Sukhnidhan started oscillating a fan on her. By the time, people managed an ambulance she died. It was alleged that she had been suffering with frequent abdominal pains for which she was being provided treatment.
6. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, held the accused persons guilty of the charges and convicted and sentenced them as mentioned above by the impugned judgment, aggrieved whereby, appellants have filed the present appeal.
7. Learned counsel for the appellants submitted that it was not established by the prosecution evidence that deceased died a homicidal death by strangulation. She had committed suicide by setting herself on fire. According to him, the evidence of Dr. K.L.Baghel (PW-16), who conducted the postmortem examination of the dead body was suspicious and unreliable. On the other hand, learned counsel for the State contended that it was amply established that death of deceased was caused by some mechanical strangulation and the dead body was thereafter burnt with a view to give colour of suicide by the deceased.
8. We have heard learned counsel for the parties and perused the evidence on record.
9. Sub Inspector S.K.Dwivedi (PW-15) on receiving information from Ishwardin Mishra on 27.6.2001 registered a marg. ASI Dinesh Tripathi (PW-17) recorded marg intimation Ex.P/14 and went at the spot. After issuing notice to witnesses, he recorded a detailed inquest memorandum Ex.P/2.
10. Kedarnath Mishra (PW-1) deposed that dead body of deceased was lying near a water tank in front of the house inside the boundary wall of the house of accused. It was burnt. Tongue of the deceased was protruding out of the mouth. Police had prepared inquest memo Ex.P/2. Similarly, Dwarika Prasad Mishra (PW-10) deposed that he saw the dead body of deceased in burnt condition. Both the hands and legs of the body were raised and her tongue was protruding out.
11. Dr. K.L.Baghel (PW-16), who conducted the postmortem examination of the body of deceased, found whole body of the deceased burnt. Charring was present over her upper and lower limbs and tongue. Blackening was present all over the body. Scalp hair, eye brows and pubic hair were burnt and sienged. Tongue was protruded and external genitalia were burnt. There was splitting of skin muscles of thigh, legs and both arms. Smell of kerosene was emanating from the body. On opening trachea, he did not find carbon particles in it. There was congestion in lungs and blood was filled in both the chambers of the heart. There was no congestion in liver, spleen and kidneys. A foetus of about 8-10 weeks duration was present in the uterus. There was no external injury or fracture in the body. In his opinion, the cause of death of deceased was asphyxia due to some mechanical obstruction and the burn injuries were postmortem in nature. He had conducted postmortem examination with Dr.V.K.Jain. Postmortem report Ex.P/12 was in the handwriting of Dr.Jain and he had also signed it.
12. Learned counsel for the appellants argued that from the evidence of Dr.K.L.Baghel (PW-16) it is not proved that deceased died of strangulation. In the Medical Jurisprudence of Jhala and Raju, it was opined that the dead body of deceased could have acquired pugilistic attitude by burning only when deceased was alive. If death occurs due to asphyxia, brain of the deceased should be congested and right chamber of the heart should be filled with blood and left chamber should be empty. It was admitted by Dr. Baghel that in case of asphyxia, as opined in Medical Jurisprudence of Mody, abdominal organs like liver, kidney and spleen should be congested. He, however, deposed that in respect of the nature of death due to asphyxia the only symptom he found was the absence of carbon particles in trachea.
13. Dr.K.L.Baghel (PW-16) was subjected to a very lengthy and gruelling cross-examination. On perusal of his statement, it is revealed that present was the first postmortem by him in a burn case, but admittedly Dr. V.K.Jain was also with him and had conducted postmortem examination. According to Dr. Baghel, the report was prepared and signed by Dr. V.K.Jain. It is true that Dr. Baghel admitted that he did not examine trachea by microscope for detecting the carbon particles, but in our opinion, this will not affect the credibility of the evidence of Dr. Baghel in view of his firm opinion that no carbon particles were found in the trachea. Citing the Medical Jurisprudence of Cox, learned counsel submitted that if saturation of carbon monoxide in the body tissues of deceased was more than 10%, it would indicate that deceased was burnt alive. No such examination was done during investigation. It is true that most scientific and technical advanced procedures should be adopted by the doctors in Medico Legal Examination, but it is common knowledge that all these facilities are not available at all the levels of villages and Primary Health Centres. Postmortem examination in the present case was conducted by doctors in primary health centre, Dhuldhuli in District Umariya where no such technically advanced equipments and doctors were present. We find no reason to doubt the opinion of doctors given in the postmortem examination report Ex.P/12 wherein it was opined that burns found on the body of deceased were postmortem in nature.
14. Apart from the medical evidence other circumstances also deserve to be considered for forming a definite opinion whether deceased died of asphyxia due to some mechanical obstruction of respiration or by committing suicide by setting herself on fire.
15. It is true that Dr.K.L.Baghel (PW-16) did not mention in his statement about an important symptom of burn case that a red line is found between the burnt portion and the healthy portion of the body of deceased, but on the perusal of postmortem report Ex.P/12, we find it clearly mentioned that line of redness was absent. According to Mody's test book of Medical Jurisprudence and Toxicology 17th Edition, page 203, if someone is burnt alive, a red line would be formed around the injured portion of the skin and that will persist even after death.
16. We are unable to accept the submission made by learned counsel for the appellants that because of omission to send the blood of deceased for test of carbon monoxide and the portion of trachea for detection of carbon particles to Forensic Science Laboratory, evidence of Dr.K.L.Baghel (PW-16) should be discarded.
17. Learned counsel for the appellants argued that Priest Ramniwas Mishra (PW-18), Phool Singh (PW-5), Mamta (PW-6), Lila Bai (PW-7) and Sushila (PW-8), who happened to be the neighbours of accused persons, saw deceased lying in burnt condition, therefore, it could not be held that death of deceased was caused by strangulation. It is true that the aforesaid witnesses stated that they saw deceased alive in burnt condition, but trial Court noted various discrepancies and inconsistencies in their evidence. According to Phool Singh (PW-5), incident occurred at 1:00 p.m. whereas according to Mamta (PW-6), it occurred at about 12:15 p.m.. Ramniwas (PW-18) stated that the time of occurrence as 12 hours. Other witnesses did not state the time when they saw deceased. According to ASI Dinesh Tripathi (PW-17), father-in-law of deceased viz. Ishwardin who lodged report Ex.P/15 gave the time of incident 12:30 p.m. saying that when he reached his house, he saw deceased lying dead behind the toilet. Mamta (PW-6) and Lila Bai (PW-7) were declared hostile and were confronted with their respective police statements Ex.P/4 and Ex.P/5 wherein they stated that when they reached the place of occurrence they found Archana lying dead. In our opinion, trial Court was right in holding that these witnesses being neighbours of accused persons probably acted interestedly with a view to save accused by improving their versions before the trial Court in saying that they saw deceased alive.
18. Learned counsel for the appellants next submitted that deceased was suffering with acute abdominal pain, therefore, she committed suicide by igniting herself. He referred to the evidence of Dr. Avinash Tiwari (DW-1) and Dr. Niranjan Kumar Das (DW-2). Dr. Avinash Tiwari (DW-1) deposed that on 15.5.2001 deceased had complained about the inflammation in urination for which he had given prescription Ex.D/6 and Ex.D/7. Before 6.4.2001, he had prescribed her treatment for headache. Similarly Dr. N.K.Das (DW-2) deposed that on 15.9.2000 deceased had come to him for treatment for some ailment in her ears. He had seen her on 23.9.2000 and had prescribed medicine. He had also advised her to consult some specialist. Evidence of Dr. N.K.Das (DW-2), in our opinion, is of no avail since he had treated deceased for the ailment in the ear more than 11/2 years before the occurrence. So far as evidence of Dr.Avinash Tiwari (DW-1) is concerned, the complaint of inflammation in urination and headache does appear such to have compelled deceased to commit suicide. It is also significant to note that on postmortem examination of the body of deceased, Dr. Baghel (PW-16) found that deceased was carrying pregnancy of about 8-10 weeks, the complaint of inflammation and headache could not be said to be abnormal in such a situation. Thus, the defence evidence does not render any help to accused.
19. After critical analysis of the aforesaid evidence, we find that deceased died due to strangulation and her body was set on fire immediately after the death. Thus, we hold that death of deceased was homicidal in nature.
20. There is no direct evidence of the occurrence, the case rests on the circumstantial evidence. It is not disputed that Smt. Gyan Bai was the mother-in-law, Sukhnidhan Mishra was her husband and Deep Narayan @ Dippoo was Dewar of deceased. They all were living together in the same house. From the evidence adduced by the prosecution, it appears that relations between deceased and the accused persons were not cordial. They did not like deceased. According to Gangotri Bai (PW-11), mother of deceased, Archana used to come to her house and say that Gyan Bai used to abuse and quarrel with her saying that she did not like the marriage. Her husband also used to rebuke her. Evidence of Gangotri Bai was corroborated by the evidence of Dwarika Prasad Mishra (PW-10) who stated that Archana used to make complaint about conduct of her mother-in-law. Kalpana Mishra (PW-12), younger sister of deceased, stated that she stayed twice the nuptial home of Archana. She saw that mother-in-law of Archana abused and rebuked her. Similar was the evidence given by brother Pradeep Mishra (PW-13) and uncle Kedarnath (PW-1). It is true that neighbours of accused persons viz. Phool Singh (PW-5), Mamta (PW-6), Lila Bai (PW-7), Sushila (PW-8) and Ramniwas Mishra (PW-18) deposed that accused persons had cordial relations with deceased, but it seems that these neighbours did not speak true because of being neighbours of accused persons. From the evidence of parents and family members of deceased, it appears that accused Gyan Bai and Sukhnidhan were not happy with deceased and they used to maltreat and harass her.
21. Next important question before us is whether all the accused or which of accused was responsible for causing death of deceased. Admittedly death of Archana was caused in her dwelling house where she resided with her husband and other accused persons. According to Phool Singh (PW-5) when he went in the house of accused he saw husband Sukhnidhan oscillating a fan on deceased. According to Mamta (PW-6) and Ramniwas (PW-18), accused Sukhnidhan and Deep Narayan were present at the spot. According to Ramniwas (PW-18), Gyan Bai was in the temple situated in the neighbourhood. There were some other women also. When there was hue and cry, Gyan Bai went running towards her house. When he, Gyan Bai and other people reached in the house, they saw Archana lying in burnt condition. Sukhnidhan was waving the fan. It appears that Gyan Bai was though living in the same house with deceased and Sukhnidhan, but she reached at the spot after the occurrence.
22. An important aspect noted by the trial Court is that when the dead body of deceased was found behind the toilet in the house of accused persons, no 'Mangal Sutra' or other ornaments were found on the body of deceased. It is also evident from the inquest memorandum Ex.P/2 prepared by investigating officer. It seems unnatural that if deceased committed suicide she would have removed her ornaments herself. No explanation was given by accused for the absence of the ornaments on the body of deceased.
23. Another important aspect of the case is that the dead body of deceased was found inside the house of accused persons. It was not the case of the defence that the incident occurred at some other place. In this situation, if deceased herself set fire, the marks of burning on the floor or at other place in the house would have naturally been detected during investigation. Absence of any such marks inside the house especially when the body of deceased was almost charred indicates that when the body was burnt, deceased was not alive or at least conscious to resist. It is also unnatural that deceased did not cry while burning, and nobody, including the accused persons who were in the house, heard any noise. From the spot map Ex.P/3, it is apparent that the house in which the incident occurred is not a big one. Certainly if deceased would have ignited herself, inmates of the house would have seen her burning and could have made attempt to save her, but it is surprising that accused Sukhnidhan, the husband though present in the house did not notice the incident of burning. Almost all the witnesses who reached at the spot stated that they saw Sukhnidhan waving a fan on the deceased. In our opinion, such a silent and secret burning could be possible only when the victim was unconscious or already dead. The fact that Ishwardin, father of accused Sukhnidhan, who lodged report Ex.P/14 with the police did not mention in the report that deceased committed suicide, further reinforces the fact that the death of deceased was not suicidal.
24. In Trimukh Maroti Kirkan vs. State of Maharashtra-(2006) 10 SCC 681, Apex Court held that "in a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
25. After examining the evidence adduced by the prosecution and the circumstances of the case in the light of legal position enunciated by the Apex Court in the case of Trimukh (Supra), we are of the view that it has been clearly established that accused Sukhnidhan Mishra who happened to be the husband, lived in the same house with deceased and that he was present in the house when deceased died on account of asphyxia due to strangulation. He furnished false explanation that deceased committed suicide by setting fire herself. Therefore, the only inference possible is that he and none else caused the death of deceased and set fire to her body with a view to cause the evidence of the commission of offence disappear with the intention of screening himself from the legal punishment.
26. So far as the involvement of accused Gyan Bai and Deep Narayan @ Dippoo is concerned, there is no direct or circumstantial evidence on record to indicate that they caused death of deceased by strangulating her. From the evidence of Ramniwas Mishra (PW-18) it seems that on hearing hue and cry from her house, Gyan Bai, who was present in the temple, rushed to the spot and saw her son accused Sukhnidhan waving fan on deceased. This indicates that when Gyan Bai reached, the body of deceased was already burnt. Therefore, in our opinion, it cannot be held that Gyan Bai either joined in commission of death of deceased or caused the evidence of crime to disappear.
27. Admittedly accused Deep Narayan was present in the house at the time of occurrence but from his mere presence no presumption can be raised that he caused or shared the intention of accused Sukhnidhan Mishra to cause the death of deceased. The legal and factual proposition enunciated by the Apex Court in the case of Trimukh (supra), in our opinion, cannot be extended to hold him liable for commission of murder of deceased. However, it can be held that he knowingly or having reason to believe that an offence was committed caused the evidence of commission of the offence disappeared with the intention of screening his brother Sukhnidhan from legal punishment. Thus, he was rightly convicted by the trial Court under section 201 I.P.C.
28. In view of the foregoing discussion, we are of the considered opinion that the trial Court did not err in holding that the death of deceased was homicidal and it was accused Sukhnidhan Mishra who caused her death by strangulation and burnt her body after death. Accordingly, conviction of Sukhnidhan Mishra under sections 302 and 201 I.P.C. and the sentence awarded to him by the trial Court is affirmed.
29. Conviction and sentence of appellant Deep Narayan @ Dippoo awarded to him by trial Court under section 302 I.P.C. is set aside. He is acquitted of that charge. His conviction under section 201 I.P.C. is affirmed, however, his sentence under section 201 I.P.C. is reduced to rigorous imprisonment for one year. Sentence of fine is affirmed.
30. Conviction and sentence of appellant Gyan Bai under sections 302/34 and 201 I.P.C. is set aside. She is acquitted of both the charges.
31. Appeal partly allowed.