{ v HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. N.K. AGARWAL, JJ. Criminal Appeal No.1155 of2002 Sanjay Kumar Kesharwani - Versus - State of Chhattisgarh AND Criminal Revision No.606 of 2002 Smt. Tulsi Bai and another - Versus - The State of Chhattisgarh and others JUDGMENT FOR CONSIDERATION HON'BLE MR. JUSTICE N.K. AGARWAL ^ ^'r tft^" \ -^ .p' A-P^ Sd/- T.P. Sharma Judge 13 -1-2010 Sd/- N.K. Agarwal Judge Post for pronouncement of iudament on 2— ( Januarv. 2010 Sd/- T.P. Sharma Judge HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH AP&. Cy) CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. N.K. AGARWAL, JJ. APPELLANT/: (Accused) (InJail) RESPONDENT: CriminalADpeal No.1155 of 2002 Sanjay Kumar Kesharwani Son of Shri Dauram Kesharwani aged about 29 years, R/o VillageKharaud, Police Station Shivri Narayan, Distt. Janjgir-Champa, Chhattisgarh. Versus State of Chhattisgarh, through Police Station Shivri Narayan, Distt. Janjgir- Champa, Chhattisgarh. {Criminal appeal under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. Prafull Bharat, counsel for the appellant. Mr. V.V.S. Murthy, Deputy Advocate General for the State/ respondent. AND Criminal Revision No.606 of 2002 V, PETITIONERS: 1. (Mother of Deceased) (Brother of Deceased) 2. RESPONDENTS: (Respondents No.2 to 5 accused before the Trial Court) 1. 2. 3. 4. Smt. Tulsi Bai W/o Late Manohar Lal Gupta, aged about 50 years, Nirmal Kumar Gupta, S/o Late Manohar Lal Gupta, aged about 33 years, Both are residents of Naya Sarkanda, Bilaspur Tahsil & Distt. Bilaspur (C.G.) Versus The State of Chhattisgarh through P.S. Sheorinarayan. Dau Ram, S/o Shobha Ram aged about 62 years, Suryakant @ Raju, S/o Dau Ram, aged about32years. Smt. Rakumani Bai, W/o Dau Ram, aged about 57 yrs < . ® 5. Smt. Butani Bai, @ Pratibha, W/o Suryakant, aged about 25 years, Respondents No.2 toSare the residents of Village Kharod, P.S. Sheorinarayan, Distt. Janjgir-Champa (C.G.) (Criminal revision under Sections 397 & 401 of the Code of Criminal Procedure, 1973) Present: Mr. Ghanshyam Patel, counsel for the petitioners. Mr. V.V.S. Murthy, Deputy Advocate General for the State/ respondentNo.1. Mr. V.C. Ottalwar, counsel for respondents No.2 to 5. JUDGMENT C^^January,2010) The followina iudament of the Court was passed bv T.P. Sharma. J: - 1. Since the aforesaid criminal appeal and the criminal revision are arising out of the same jydgment 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 3 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.l. for two years and to undergo R.l. 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 ofthe 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 Session^ 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:- > 96% superficial burns; > dead body was at the stage of pugilistic boxer attitude, singling of hairs; > redline not present between burnt and un-burnt parts; > smell of kerosene was presenton burnt piece of underwear found over the body; > faecal matter came out from anus; > tongue protruded, but not turned into black colour; > mouth was closed; and > 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 spotvide 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-SA 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 KumarGupta; 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 circumstantjal evidence. In case of circumstantial evidence, the 6 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 informedby 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 hisexamination under Section 313 ofthe 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 ofappellant 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 behalfof appellant Sanjay Kumar, placed reliance in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 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. 1AIR 1984 SC 1622 2 (2001)98cc 736 8 ^, 14.0n the other hand, Mr. V.V.S. Murthy, learned Deputy Advocate~©^heral 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 ofthe 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. 17.1n order to appreciate the arguments advanced on behalf of the parties, we haveexamined the evidence available on record. ,..,.^».,.^_^«®.. 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. 19.1n 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. healong 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 partsof 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 npt stained; another injury except burn injury was not found over the body and no injury was found over neck. 10 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. Itappears that according to the opinion of doctor, burn injury was post-mortem and not the cause of death. Mode of death was asphyxia. 22.0r. 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 blackeningover 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 11 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 Qpen place, then in case of ante-mortem burn, the person will inhalesoot 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 alsoa 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 6ft. x 3 % ft. and height was 8 % ft. Size of the toilet wasvery 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 12 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 strugglei.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 ifthe body is burnt after the death. 25.1n 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 injyry 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 circumstancesare 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 ofthe 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 13 hastelephoned 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 hewent to the shop at about 6 a.m. 28.0ther 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 takingtheir 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 Sectioh 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 ^.^^^^.^. 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