minal Appeal No 738 of 1992
From the Judgment and Order dated 16111992 of the Bombay High Court in Crl
A No 148 of 1989
AN Mulla Ms Shefali Khanna and JM Khanna for the Appellant
SB Bhasme SM Jadhav and AS Bhasme for the Respondents
The Judgment of the Court was delivered by YOGESHWAR DAYAL J
This is an appeal by the four accused persons against the judgment of the Bombay High Court dated 16th November
Appellant No 1 who was accused No 1 was tried for the offence of having 880 committed the murder of his daughter in law Sangita wife of appellant No 2 who was accused No2 during the night between 14th September 1984 and 15th September 1984 at the residential house of the appellants at Murtizapur with common intention and also for having treated her with cruelty on account of dowry amount
In the alternative the appellants were also charged for the offence of having abetted the deceased Sangita in commission of suicide by subjecting her to cruelty
Appellant no3 who was accused No3 is the wife of accused No1 and appellant No4 who was accused No 4
is their daughter
Appellants 1 to 4 are hereinafter called accused Nos 1 to 4
The story of the prosecution was as follows The accused run a printing press at their residence
Marriage of accused No 2 was settled with the 5th daughter of Madan lal PW 8
Few days prior to the settlement of the marriage
marriage of her elder sister was also settled
As such marriages of both the daughters ie Sangita and Hemlata were celebrated at Paratwada on 28th April 1994
Talk over the marriage had taken place about a month prior to the marriage and the same was finalised after about 2 or 3 days of such talks
At the time of finalisation accused No 1 demanded Rs 20000 by way of hard cash as dowry besides other articles add he himself had given such demands in writing vide Ext
Though agreed Madan Lal father of the deceased could not give Rs 20000 at the time of marriage
He also could not give the gold agreed though he assured to comply with the demands later on getting the crops
After the marriage on account of the month of Shrawan and as per custom Sangita resided with her parents
It was during her stay after the marriage that she was found disturbed and sullen
Though she herself did not give out the reason therefore but on insistence by the father to know the reason she told him that accused No 1 had an evil eve on her and that other members of the family used to beat and ill treat her because of the failure on the part of Madan Lai to pay the dowry amount
Though Madan lal assured that he would come down to Murtizapur and pursued the accused but he could not visit Murtizapur
After the month of Shrawan Sangita returned to Murtizapur but not communication was made about her safe return by the accused persons to her father
The accused persons had a telephone connection and Madan Lal PW8 two three days prior to the date of the incident contacted accused No 1 on telephone
Accused No 1 talked angrily with Madan Lal
Madan Lal then requested accused No 1 to call Sangita on telephone
Sangita came on phone and in answer to his query she broke down and Stated weeping and told Madan lal as to why he did not send Ganesh Chaturthi Neg  Neg  means a customary offer that the father of the bride has to pay on an auspicious day
It varies according to financial capacity of the father
He told 881 Sangita that he had committed it mistake and assured that he would be sending it immediately
On the next day lie had got drawn a draft of Rs 101 on State Bank of India
74 A is the said draft
It was thereafter when Madan Lai was on a visit to Amravati that Madan Lal received a message about Sangita having got burnt on 15th September 1984
During the night between 14th and 15th September
1984 at about midnight the accused found Sangita not in her bed and smell of burning
They found that in the rear side open space Sangita was burning and lying down
According to the defence the doors were closed from inside and there was no access to the said open space
Accused No 1 informed the police about the occurrence that he had seen through the window opening on the pen space
Accused No 1 at about 345 am on 15th September 1994 submitted it report Ext82 to the police wherein he had stated that about 2 10 am in the night Sangita was found to be burnt and died in the bath room
Mundheh
the investigating Officer gave instructions to the accused persons not to disturb the situation
Initially on the report of the accused accidental death was registered
PW9 when reached the spot on 15th September
1984 at about 1000 am he made spot Panchnama vide ext63
He also found a postcard
half burnt Ext 62 by the side of the dead body
He thereafter drew inquest panchnama Ext64
PW 1 Bhanudas acted as a panch
PW9 having convinced that it was a case of murder lodged it report on behalf of the State registering the offence punishable under Section 302 read with Section 34 of the Indian Penal Code
Dr Lande PW3 on 15th September 1994 at about 500 pm conducted the post mortem
The Additional Sessions Judge on the basis of the material filed with the challan
on 30th September 1994 trained a charge under Sections 302499 A and 201 read with Section 34 of the Indian Penal code and thereafter recorded the evidence of PWs
1 to 9
Thereafter by an order dated 22nd August 1988 the trial court framed an additional charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code
The accused persons challenged the framing of the additional charge before the High Court but the challenge was defeated
The accused persons were accordantly tried
Their defence through out was a total denial
It appears that during arguments the Prosecutor did not think it proper to press for the diffence punishable under Section 302 read with Section 34 of the Indian penal Code
According to the Prosecutor the only case made out was for the offences punishable under Sections 306 498 A read with Section 34 of the Indian Penal Code
The trial court endorsed the view of the Public Prosecutor and did not 882 discuss the relevant evidence it all on the charge of Section 302 and recorded a finding of acquittal in that behalf
He also held that the charge of Section 201 also did not survive
The learned trial Judge also held that the prosecution hits not been able it prove that the accused persons with their common intention treated Sangita with cruelty or thereby abetted her to commit suicide
He accordingly acquired all the accused persons for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code
The State filed all appeal against their order of acquittal and the High Court on appeal castigated the trial judge for having gone merely oil the statement of the public Prosecutor without applying his own mind on the evidence
The High Court examined the evidence afresh
The High Court posed a question is to whether the nature of death of Sangita was suicidal or homicidal and ultimately gave a finding that it was a case of homicidal death and found all the accused guilty under Section 302 read With Section 34 and Section 201 read with Section 34
The accused were also find guilty under Sections 498 A read with Section 34
For the offence under Section 302 read with Section 34 all of them were sentenced to rigorous imprisonment for life and different fines
For the offence under Section 201 read with Section 34 all the accused persons were sentenced to rigorous imprisonment for three years and each of them was fined Rs1000 
For the offence under Section 498 A read with Section 34 all of them were sentenced to one year rigorous imprisonment and a fine of Rs2000
Learned counsel for the defence however submitted before the High Court that the charge under Section 302 read with Section 34 did not survive tit view of the concession made by the Prosecutor and also in view of the framing of the additional charge under Section 306 read with Section 34
It was also submitted that the framing of the additional charge negated the theory of murder in pith and substance
The High Court however negatived this submission and on consideration of the evidence convicted all the accused persons as stated above
Body of Sangita suffered 100 burn injuries and smell of kerosene was even noticed in the spot panchanama
The description 1005 burn does not really fully 883 convey the condition of the body
Asper the inquest report the dead body was lying on its back in the open court yard at the back side of the house of the accused
Both the legs were partly stiffen
Both the hands were partly bent and lying at side
Hairs on the head burnt and even fleshy portion is also burnt at some places
There was slight hair at some portion of head
Complete body was burnt and skin on it also peeled up
Face had became red and black
Eyes were closed and burnt
Nose was burnt and blood was cozing from the nose and mouth
Tongue was slightly protruding out
Brassier of the left side was totally burnt and right side was partly burnt
Ash of burnt cloth was visible on stomach
A partly burnt small piece of the border of saree was lying there
Some pieces of saree burnt and sticking each other were lying on the stomach
Skin on palm of both hands was peeled up and was appearing reddish
Skin on the complete body was burnt and peeled up
On observing the body by turning its upside down the complete body was burnt from back side
On observing the private parts of the deceased through Pancha No3 it was stated that private parts were burnt and there was no injury and to ascertain the actual cause of death the dead body was sent to the Civil Surgeon Murtizapur for post mortem
According to Dr Lande who conducted the postmortem on opening of trachea black particles were found
He recorded that probable cause of death was 100 burn with bum shock with asphysix
On the basis of medical evidence the High Court again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the act of a third person
The High Court felt that the trial court has not even discussed the medical evidence or the inquest report and hastily reached the conclusion that it was a case of suicidal death
According to the High Court the entire approach of the trial court was thoroughly unsatisfactory and grossly erroneous
After going through the evidence the High Court gave the following findings That the deceased could not control her emotional out burst even during the presence of her father in law while talking on telephone
The deceased was a young girl of 20 years
A determination to suffer extreme pain in silence could not be a matter of speculation
In third degree injuries as per Dr Lande the victim suffers extreme pain
Such injuries will make the person to give out cries and shouts for help The shouting and crying of the deceased was not only obvious but inevitable
Undisputedly none had heard the cries or shouts of the deceased while she was in flames
This circumstance alone does not support the probability of suicidal death
884 The trial court has wrongly read the contents of letter Ext
62 and its interpretation is highly illegal
Undisputedly Sangita returned from Paratwada after Shrawani Mass just a week before the incident probably by 7th September 1984
She was subjected  to insinuation and accused used to refer her as awara loafer
badmash She wanted to convey this to her father through post card Ext62 which seemingly not delivered
By this letter she requested her father not to visit Murtizapur
This letter never reached post off ice and the message could not be passed to Madan Lai PW 8
Before accomplishing her design to convey this message she could not bring an end to her life
Sangita could not simply think of committing suicide while in possession of Ext62
Sangita at the time of incident as per the post mortem report
was having a pregnancy of 3 4 months and this is also not in tune with the act of commission of suicide
The Sessions Judge omitted to discuss the complete evidence of Dr Lande and the post mortem report Ext50
As per post mortem report the eye ball and tongue of the deceased were protruding
Dozing of the blood was found from the nose and mouth
In case of death due to burning such injuries cannot be sustained
Sangita was assaulted before she was set on fire
There might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person
Relying of the evidence of PW1 Shivraj a neighbour who heard a shriek of  woman as a result of strangulation coming from the house of the accused
Taking into account tile medical evidence read with the testimony of PW1 Shivraj Sangita met with tile homicidal death
A ball of cloth half burnt was also found by the side of the body
The ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts
PW5 Bhanudas had also noticed dragging marks in the court yard and the deceased after assault was dragged and kept at the spot
While in flames Sangita did not make any movement
She was completely motionless
The latching of doors of the compound was not accepted as an act of the deceased
Latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring colour of suicide to the incident
885 The High Court then posed the question as to who is responsible for homicidal death of Sangita
It was held that it could not be an act of an individual It was joint venture
There is no direct evidence
Undisputedly the payment of Rs20000 was not made nor the tither items mentioned in Ext
73 were given till the date of incident
On her second visit the deceased had disclosed to her father Madan Lal
that the members of in laws  family had beaten and ill treated her for the reason of non fulfillment of dowry and other articles
A reading of the letter indicates that the accused persons had very serious grievance against Sangita and her parents for non fulfillment of dowry demands
Recovery of handkerchief at the instance of accused No 1 in pursuance of a disclosure statement and the seizure thereof vide Ext69 from a drawer of the table of the office
The handkerchief was smelling kerosene oil
It was concealed at a place which was not normally or ordinarily used for keeping the handkerchief
This handkerchief was used at the time of the incident
None of the accused persons made any attempt to reach the spot even though they noticed the death of Sangita
They merely allowed the body to be burnt
Accused persons had quoted exact time of death in Ext82 which means that they were mentally alert and conscious of the happening in the house
The refusal to disclose the death of Sangita to the chowkidar of the locality PW2 Rahadursingh
The meeting with chowkidar Bahadursingh was falsely denied in the statement under Section 313 of the Code of Criminal Procedure
Homicidal death occurred by Sangita while she was in their custody
The incident with its gravity and extent cannot in any manner go unnoticed
As such the accused persons were duty bound to offer plausible explanation
Their action was concerted
well thought out
well planned
With the aforesaid findings all the accused persons were found guilty by the High Court and the appellants have come up in appeal before this Court
This court on application of appellant Nos 3 and 4 ie another in law and sister in law of the deceased admitted them to be on hail
Apart from the inferences noticed by the High Court there are certain other features in the post mortem report Ext
15 which may also be noticed at this state
It is stated in paragraph 13 of the post mortem report that the whole if skin of face 886 was burnt and Covered at places with black soot
Eye ball slightly protruding Tongue was protruding from mouth
Blood stained discharge from nose and mouth
In paragraph 17 it is noticed heirs of the scalp eye lashes both ears eyes whole neck
whole chest
whole abdomen suffer from burns
Buttock and pubic hairs also burnt
Black soot was present over burnt area of face chest abdomen
In paragraph 19 it is stated Brain  Meninges congested
In paragraph 20 it is stated Larynx
Trachea and Bronchi congested on opening troches
black particles seen inside human
Right lung left lung congested
Right ventricle of the heart was full whereas left was empty
In paragraph 21 it is stated liver and gall bladder congested
pancreas and suprarenals congested
spleen congested kidneys congested and bladder empty ie parenchymatous organs show intense venous congestion
Dr KS Narayan Reddy MD DCP MIAFM FIMSAFAFSc Professor of Forensic Medicine Osmania Medical College Hyderabad in his well known treatise THE ESSENTIALS OL FFORENSIC MEDICINE AND TOXICOLOGY
Sixth Education at page 255 gives descriptions of internal as well as external symptoms of manual strangulation
At page 255 while dealing with signs of asphyxia
the learned author observes  The face may be livid blotchy and swollen the eyes wide open bulging and suffused the pupils dialated the tongue swollen dark cloured and protruded
Petechial hemorrhages are common into the skin of the eyelids face forehead behind the cars and scalp
Bloody froth may escape front the mouth and nostrils and there may he bleeding from the nose and cars
The hands are usually clenched
The genital organs may be congested and there may be discharge of urine faeces and seminal fluid
 While internal injuries described little later included as under The larynx
trachea and bronchi are congested and contain frothy
often blood stained mucus
The lungs are markedly congested and show ecchymoses and larger subaerial hemorrhages
Dark fluid blood exudes on section
Silvery looking spots under the pleural surface due to rupture of the air cells which disappear on pricking
are seen in more than 505 cases
The parenchymatous organs show intense venous congestion and in young persons ecchymoses are usually seen on the heart and kidneys
The brain is contested and shows petechial hemorrhages
The right side of the heart is full of dark fluid blood and the left empty
Both the cavities are full if the heart stopped during diastole
 Whereas in burn injuries the learned author at pages 237 238 observes
the 887 brain is usually shrunken firm and yellow to light brown due to cooking
The dura matter is leathery dura matter is meninges of the brain
If the death has occoured from suffocation
aspirated blackish coal particles are seen in the nose mouth and whole of the respiratory track
Their presence is proof that the victim was alive hen tile fire occurred
The pleurae are contested or inflamed
The lungs are usually congested
may be strunken and rarely anemic
Visceral congestion is marked in many cases
The heart is usually filled with clotted blood The adarmes glands above kidneys may he enlarged and congested
Some of these symptoms or internal and external injuries are common in case of strangulation and burn like face is swollen and distorted the tongue protruded
the lungs are usually congested visceral congestions is marked in many cases
What is to he noticed in the present case is that there are hardly any cries as per the defence also by the deceased
This is not possible even in case of suicide
Even if the burns ire inflicted with suicidal intent tile victim is bound to cry out of pain
Admittedly there was no cries and therefore it was not a Case of suicidal burn but the deceased was put in a condition where she could not cry and yet get burnt by third party
As is clear from the aforesaid commentary of Dr KS Narayan Reddy that if it was a case of merely burns the blood of the heart would have got clotted
Even the postmortem report does not say that asphvsix was due to burn
Coupled with all the internal injuries which occur in the case of strangulation
are present in this case
As pointed out by the High Court there is no direct evidence to connect the appellants with the offence of murder and the prosecution entirely rests its case only on circumstantial evidence
There is a series of decisions of this Court propounding the cardinal principles to be followed in cases in which the evidence is of circumstantial nature
It is not necessary to repapitulate all those decisions except stating the essential ingredients as noticed by Pandian J in the case reported as The State of Uttar Pradesh vs Dr Ravindra Prakesh J in the case 2 SC 114 at 121 to prove quilt of an accused person by circumstantial evidence
They are 1 The circumstance from which tile conclusion is drawn should be fully proved 2 the circumstances should he conclusive in nature 888 3all the facts so established should he consistent only with the hypothesis of guilt and inconsistent with innocence 4the circumstances should
to a moral certainty exclude the possibility of guilt of any person other than the accused
 Now let us examine the impelling circunistances attending the case and examine whether tile cumulative effect of those circumstances negatives tile innocence of tile appellants and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else
There is no doubt that when the incident occurred there was no outsider its the house
The circumstances which ire establislied its having closely linked up with one another may be noticed 1 The motive for the occurrence
2 The place where the tragic incident occurred was in possession and occupation of the appellants
3 The occurrence had happened in the wee hours when body else would have had ingress at the place where the incident allegedly occurred
4 The appellants admit their presence
The positive features which occurred had it been it pure case of burning there would he evidence of vomiting
6 The positive opinion of the doctor that the death was due to asphysix as well apart from 100 burns
7 The deceased was carrying fetus of 3 4 months 8 The extensive use of kerosene as seen from the burn shows that the deceased was practically 889 drenched as sort of a bath with kerosene 9 Total absence of any shout or cries except one which was heard by way o f strangulation by PW
1 10 Blood in heart was not found clotted
Right ventricle heart was full of blood but left ventricle wits empty
11 Besides total burning of neck was to destroy evidence of attempted strangulation
12 In burn brain is usually shrunken and firm whereas in strangulation it is congested
As noticed by Pandian J in the aforesaid decision opinion of Taylor in Medical Jurisprudence is quoted below
It reads thus Not uncommonly the victim who inhales smoke also vomits and inhales some vomit presumably due to bouts of coughing and plugs of regur gitated stomach contents mixed with soot may be found in the smaller bronchi in the depths of the lungs
 By the time a person could take a bath of kerosene she is likely to get fainted and would not be in a position thereafter to burn herself
A total burning of the face and the neck shows that even at portions where she was not wearing any clothes were not burnt
It could only be possible if she had poured kerosene on her head and face also
It is not understood as to how the unposted post card found near the dead body was not burnt when the whole body had got burnt
It in fact indicates that the planting of the post card was to show that it was a case of suicidal death
In passes all human probabilities that the appellants have satisfied themselves by watching through the window the burning of daughter in law without any due and cry or without and serious attempt to save her
We are thus satisfied that it was a case of murder and not suicidal death
So far as the accomplicity of appellants 1 and 2 are concerned there is no doubt
But 890 it is not necessary if appellant Nos 3 4 ie mother in law and sister in law of the deceased have also participated in the murder of the deceased
For the aforesaid reasons we dismiss the appeal on behalf of appellant
Nos 1 and 2 but give benefit of doubt to appellant Nos 3 and 4 and accept the appeal on their behalf
They are accordingly acquitted
The convictions and sentences of appellant Nos 1 and 2 are upheld
U R Appeal dismissed


Summary:
Respondent No 2 was married to the appellant
She went to reside with her parents in order to prepare for Higher Secondary Examination
In the meantime she conceived
The appellant and his family members asked her to undergo abortion but she refused and a child was born to her
In a petition under section 125 Cr
PC riled by respondent No 2 against her husband the wife and the child were granted maintenance
The appellant disputing the paternity of the child riled a criminal miscellaneous application for blood group test if respondent No 2 and the child
It was claimed that if it was established that he was not father of the child he would not be liable to pay the maintenance
The application was dismissed
Appellant s revision application was also rejected by the High Court
The appellant filed the appeal by special leave
Dismissing the appeal this Court 918 HELD 11 Courts is India cannot order blood group test as a matter of course
Unlike the English law in India there is no special statute governing this
Neither the Criminal Procedure Code nor the Evidence Act empowers the court  to direct such a test Affiliation Proceedings Act
 1957 Family Reforms Act
 1969 Family Reforms Act 1987
12 Wherever applications are made for blood group test in order to have roving inquiry the prayer cannot be entertained
Bhartiraj vs Sumesh Sachdeo  Ors  approved
21 Section 112 read with s4 of the Evidence Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity
It is a rebuttable presumption of lam that a child born during the lawful wedlock is legitimate and that access occurred between the parties
This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities
22 There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act
Vasu vs Santha 1975 Kerala Law Times 533 and Raghunath vs Shardabai  referred to
Morris vs Davies  cited
3 The Court must carefully examine as to what would be the consequence of ordering the blood test whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman
Dikhtar Jahan vs Mohammed Faroog
  referred to
41 Blood group test is a useful test to determine the question of disputed paternity
It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child
42 No person can be compelled to give sample of blood for analysis and no adverse inference can he drawn against a person on account of such refusal
919 Hargovind Soni vs Ramdulari AIR 1986 MP 57 approved
Vasu vs Santha 1975 Kerala Law Times 533 Polavarapu Venkeeswarlu vs Polavarapu Subbayya  referred to
Subayya Gounder vs Bhoopala AIR 1959 Madras 396 Venkateswarlu vs Subbayya AIR 1951 Madras 910 Hukum Chand Boid vs Kamalan and Singh Cal 927 cited
Wilson vs Wilson Lancet 1942 1570 Re L 1968 1 All England Reports 20 B R B vs J B 1968 2 All Eng
Reports 1023 referred to Tauylor s Principles and Practice of Medical Jurisprudence Vol 2 Medical Jurisprudence and Toxicology 8th Edition by Rai Bahadur Jaising P Mod cited
Forensic Sciences  edited by Cyril H Wecht referred to
In the instant case the purpose of the application for blood group test was nothing more than to avoid payment of maintenance without making any ground whatever to have recourse to the test
The High Court was right in confirming the order of the court below rejecting the application