IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.15 of 1989 Against the judgment of conviction and order of sentence dated 3rd of December, 1988 passed by Sri Jagdish Jha, Additional Sessions Judge-X at Patna in Sessions Trial Case No. 83 of 1987. 1. Amitabh Kumar, Son of Sri Surendra Narain Sharma. 2. Surendra Narain Sharma, Son of Shri Ram Lakhan Singh Both residents of village-Nama, P.S.-Punpun, District- Patna. ……….Appellants. Versus The State of Bihar .... .... Respondent Appearance : For the Appellants : Mr. Neeraj Kumar, Adv.(Amicus Curiae). For the Respondent :Ms. Shashi Bala Verma, APP ****** HON’ BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’ BLE MR. JUSTICE ASHWANI KUMAR SINGH *********** Ashwani Kumar Singh, J. The two appellants have been convicted under Sections 302/34 & 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for seven years respectively. Both the sentences have been ordered to run concurrently. Appellant No. 1 is son of appellant No. 2. The victim is one Pushpa Devi, wife of appellant No.1. 2. The prosecution story in brief is that Pushpa Devi was married to Amitabh Kumar (appellant No. 1) at the 2 age of 20 years in the year 1983 and she lived at her Sasural in village-Nema for eight days and thereafter the informant, who is brother of victim Pushpa Devi brought her to his place on “Rukhsadi”. Again on 24.4.1985 her husband (appellant No. 1) and his agnates brought her to their place. Thereafter, as per allegation, both the appellants desired to have motorcycle owned by informant‟s younger brother. The Appellants and co-accused Mahasundari Devi (Mother-in- law) asked Pushpa Devi to get motorcycle from her brother. The appellants always used to tell the informant that if the motorcycle would not be given she would be killed and appellant No. 1 would marry for the third time. They also told that they had already killed one woman and they would also kill sister of the informant if the demand is not fulfilled. They used to tease, abuse and assault the sister of the informant. They wanted to snatch the ornament of the deceased Pushpa Devi for giving the same to Amrita Kumari in her marriage. It would be relevant to mention it here that Amrita Devi was a co-accused in the case. She is sister of appellant No. 1 and daughter of appellant No. 2. The deceased was never ready to part with her ornaments. On 24.5.1985 appellant No. 1 went to Pali School and called the informant there. Appellant No. 1 told the informant to persuade the deceased to part with her ornaments otherwise a threatening was given that she would be killed. At that time, Nand Singh, Awadhesh Sharma and 3 Suresh Singh were present there and they heard the threatening given to the informant. On that very day the informant alongwith his villager namely Nand Singh went to village-Nema. The informant tried to persuade her sister to give ornaments as desired by the appellants. However, the deceased told that her husband and in-laws used to abuse, assault and threaten her. She also told that she was not being treated properly in her matrimonial house and the ornament belongs to her and she would not give it to any one. This caused further annoyance to the mother-in-law of the deceased and she held hire locks of the deceased and started assaulting her. The informant and Nand Singh intervened and somehow managed to pull them apart. The informant told the mother-in-law of deceased not to assault his sister in his presence. The Mother-in-law, however, threatened that now either she would remain alive or the deceased would remain alive in the house. The informant did not take the said threatening very seriously and returned home. On 25.5.1985 the deceased sent a message to the informant through a boy residing at Gopalpur to come to her. Accordingly, the informant again went and met the deceased on 25.5.1985 itself. The deceased started weeping and asked the informant to take her back to her father‟s place. She told that her husband and in-laws used to assault for motorcycle and ornaments and she has reasonably apprehended that 4 she would be killed. The informant still tried to persuade the deceased to reside in her matrimonial house. Even on that day the appellants and Mahasundari Devi (Mother-in-law) repeated their demand of motorcycle but the informant told them that his younger brother was not ready to give the motorcycle to them. On this day they told the informant that the consequences would be bad. The informant then requested them to allow the deceased to go with him but they did not agree. Thereafter, the informant returned to his home in the evening on 25.5.1985. On 26.5.1985 at about at about 8.00 A.M in the morning the informant come to know that his sister had been killed by her husband, father-in-law, mother- in-law and sister-in-law (Nanad). The informant immediately rushed for village-Nema along with Nand Singh and Shiv Narayan Singh. On their way near village-Behrawan several persons told the informant that his sister was killed and thereafter burnt by her husband and in-laws. The informant, thus, instead of going to village-Nema directly went to Punpun Police Station at about 10.00 A.M. and a case under Section 302/34 of the Indian Penal Code was registered against the appellants, Amrita Kumari (Nanad) and Mahasundari Devi (Mother-in-law). 3. The appellant Mahasundari Devi though named in the F.I.R. was subsequently declared absconder and Amrita Devi (Nanad) though put on trial along with the 5 appellants has been acquitted by the Trial Court. 4. The case was investigated by one Ram Prasad Singh, P.W.-3, the then Officer-in-Charge of Punpun Police Station. Upon conclusion of investigation charge sheet was submitted in the case against the appellants, Amrita Kumari and Mahasundari Devi. Cognizance of the offence was taken by the Magistrate concerned and the case was committed to the Court of Sessions. The defence did not plead guilty and claimed to be tried and thus, charges were framed against the appellants. 4. In course of trial, three witnesses were examined on behalf of the prosecution. They are Dr. R.P. Srivastava (P.W.-1), who conducted the post-mortem examination, Bishwak Sen Sharma (P.W.-2), the informant and Ram Prasad Singh (P.W.-3), the Investigating Officer. 5. The defence is total denial of charges levelled against the accused. The plea of defence is that the deceased died of burn when fire caught to her Terelene Sari from a “Diya” while she was arranging her bed in the night intervened in between 25.5.1985 to 26.5.1985. A defence of false implication has been made and the motive assigned for such defence is that the appellant No. 1 declined the proposal to marry the surviving younger sister of the deceased after her death. 6. The defence has also examined one witness, 6 Dr. Upendra Prasad Verma (D.W.-1) in support of their case. 7. The following documents have been proved by the prosecution and marked as Exhibit:- Documents Marked as Exhibit Proved By (i)Post-mortem report Exhibit-1 P.W.-1, Dr. R. P. Srivastava. (ii)Signature of endorsement on F.I.R. Exhibit-2 P.W.-2, Bishwaksen Sharma. (iii) Written report of appellant No. 2 Surendra Narain Sharma Exhibit-3 P.W.-2, Bishwaksen Sharma. (iv) Endorsement and signature in the pen of I.O. Ram Pd. Singh on the written report in the pen of appellant No.2. Exhibit-3/a P.W.-3, Ram Prasad Singh (v) F.I.R. Exhibit-4 P.W.-3, Ram Prasad Singh (vi) Inquest report Exhibit-5 P.W.-3, Ram Prasad Singh (vii) Signature of witness, Narendra Sharma on the Inquest report Exhibit-5/a P.W.-3, Ram Prasad Singh (viii) Signature of witness Mukteshwar Sharam on Inquest report Exhibit-5/b P.W.-3, Ram Prasad Singh (ix) Seizure list Exhibit-6 P.W.-3, Ram Prasad Singh (x) Signature of witness Ram Sakal Sharma on seizure list. Exhibit-6/a P.W.-3, Ram Prasad Singh (xi) Signature of Exhibit-6/b P.W.-3, Ram Prasad 7 witness, Shiv Shankar Sharma on seizure list. Singh 8. The defence has attacked the judgment of conviction and order of sentence passed by the trial court on the following grounds:- 1. The witnesses in the First Information Report before whom the alleged demand of motorcycle was made or threatening was given or the persons who accompanied the informant to the house of the appellants either before death or after death of the deceased have not been examined during the whole trial and they have purposely been withheld in order to suppress the correct facts of the case. 2. P.W.-1, who held the post-mortem examination on the dead body of the deceased, has neither found any ligature mark nor was tongue found in protruded condition. The post-mortem examination report did not find mention anything about throat, front Larynx and Trachea 3. The post-mortem examination report did not give any data in order to substantiate that burn injury was post-mortem injury. 4. The circumstances which were used against the appellants have not been put to them during their examination under Section 313 of the Code of 8 Criminal Procedure. 5. No independent witness either of informant‟s village or of accused village has been examined in the case. 6. Except informant no other relative such as father, mother, brother and sister has been examined during trial to either corroborate the alleged fact regarding demand of dowry or ill-treatment caused to the deceased. 9. The D.W. examined on behalf of the defence doubted the correctness of the finding given in the post- mortem examination report by P.W.-1, Dr. R.K. Srivastava. 10. On the above said grounds, learned counsel for the appellants, Mr. Neeraj Kumar (amicus curiae) submits that the finding given by the trial court is on wrong appreciation of evidence adduced on behalf of the prosecution and defence making the same to be perverse. Learned counsel for the appellants has also submitted that the prosecution has failed to prove the case beyond reasonable doubt, and, thus, the trial court ought to have acquitted the appellants giving them at least benefit of doubt. 11. On the other hand, learned counsel for the State, Miss. Shashi Bala Verma, submits that the prosecution has established the case beyond reasonable doubt and the finding of the trial court cannot be faltered with. 9 12. After hearing the parties at length and perusing the evidence on record, things which stands admitted are as follows:- a) The deceased, Pushpa Devi was sister of the informant and she was married to appellant No. 1 only few years back. b) She was residing in the house of appellants at the time of death in the night intervening between 25.5.1985 to 26.5.1985. c) The deceased died an unnatural death inside the house of the accused. d) At the time of death of the deceased, the accused persons were present inside the house. 13. The prosecution relying on the evidence of the three witnesses has alleged that Pushpa Devi was first strangulated to death and then in order to conceal the crime her dead body was burnt so that the cause of death may not be ascertained. 14. The defence, however, is that Pushpa Devi died an accidental death as her Terelene Sari caught fire from a “Diya” which was there inside her room while she was arranging her bed. 15. In this background of version of prosecution and defence what becomes important is as to whether the injuries found by the doctor while conducting post-mortem examination, were post-mortem or ante-mortem. Thus, I 10 would like to take up this issue first. 16. The inquest report (Exhibit-5) of the case was prepared on 26.5.1985 at about 12.00 Noon. It has been clearly mentioned that there is mark on throat which suggest that the deceased was strangulated and thereafter burnt. 17. The post-mortem report was prepared on 27.5.1985 at about 11.00 A.M. From a perusal of the post- mortem report, it would appear that brain, both lungs, liver, spleen and kidney were found congested. Both chamber of heart was found empty. The doctor who conducted the post- mortem at P.M.C.H., Patna on dead body of the deceased has described that Dermo Epidermal post-mortem flame burn injury was present all over body except left palm and right sole of foot. Scalp hairs were all burnt except a small amount at back of scalp. It has also been described that anti-mortem injuries found on her on dissection was sub-cutaneous echymosis 1” x ½” on both sides of Trachea below the thyroid cartilege. Hyoid bone, Thyroid cartilege or rings of Trachea were not fractured. Mucous Membrane of Larynx and Trachea were not fractured. Mucous Membrane of Larynx of Trachea were congested. The time elapsed since death was ascertained to be within 48 hours (but not less than 18 hours). 18. Dr. R.P. Srivastava, (P.W.-1) while being examined in court, has stated that the post-mortem report was prepared by him and it bore his signature. He was 11 extensively cross-examined. In his cross-examination, he has categorically stated that he has examined the external and internal organ and also examined the Bronchial tube and lungs. He has stated that since body was burnt and so, it was not possible to detect the external injury, if any. He has stated that on seeing the report he can say that the death in question was due to manual strangulation and not strangulation by rope. He has further stated that all signs and symptoms mentioned in the Treaties of Medical Jurisprudence may not be found together in the cases of strangulation. He has further stated that it require sufficient force to throttle the person and mere touch would not produce any Echymosis of the degree as was found on the body of the deceased. The doctor has stated that he did not find extravasation of blood in neck. According to him, extravasation of blood depends on the force and duration for which the pressure is applied. He further stated that it is not necessary in all cases of strangulation that tongue is protruded. If the death is instantaneous this will not happen. The doctor has said that bleeding occurs when there is collection of gases in the body and when the blood vessels cut or ruptures blood oozes out and it is wrongly said to be a case of bleeding. He has denied the suggestion that post- mortem bleeding will be mistaken to be Echymosis. According to him, after death blood in the body stagnates in the most dependent parts by gravitation. He also denied the 12 suggestion of defence that he mistook the post-mortem bleeding as Echymosis. The doctor, P.W.-1 in categorical terms stated that burn injury on the deceased was caused after her death because there was no line of vital reaction. In the case of deceased, burn injuries were Dermo Epidermal. The whole body was burnt except portions mentioned in the report. They were dry burn injuries. The doctor has denied suggestion that he had given a wrong report in order to tally his opinion with inquest report. It would be important to mention it here that no carbon was found in throat or lungs. 19. On behalf of defence (D.W.-1), Dr. Upendra Prasad Verma was examined in order to prove that the post- mortem was not correct. D.W.-1, in course of his deposition, has stated that the doctor conducting the post-mortem must meticulously make internal and external examination after going through inquest report and after finding proper data he should arrive at his opinion. He has stated that any finding observed by the police as reported in the inquest report, if not found, should be recorded in the post-mortem report. He has also stated that in case of strangulation the tongue is protruded but not always. D.W.-1 has also stated that in case of manual strangulation, mark of ligature is not found. 20. In para 9 of his Examination-in-Chief, D.W.-1 has stated that for post-mortem burn injury there are three datas, which would be relevant:- 1) Absence of line of redness; 13 2) Absence of ante-mortem blisters and 3) Finding of reparative process. 21. He has stated that in the present case, no specific data to support post-mortem burn injuries has been mentioned, such as, there is no line of redness and ante- mortem blisters but the D.W.-1 in the same stretch voluntarily stated that in case of flame injuries these datas may not be found. In sum and substance D.W.-1 has tried to make out a case that no data was mentioned in the post- mortem report (Ext.-1) to suggest or to confirm the opinion arrived at regarding cause of death and nature of burn injuries and has expressed his doubt about correctness of the post-mortem report. 22. The D.W.-1 was cross-examined by the prosecution and he has admitted that the victim if burnt in sitting posture on chair with hands tied on arms of chair his/her sole or palm may not burn. He has also submitted that there will be no redness in post-mortem burn injuries and the Surgeon conducting the post-mortem did not find line of redness. Finally, D.W.-1 has conceded that the Surgeon who conducted the post-mortem report was duly qualified and experienced and the Surgeon holding the post- mortem is in a better position to say regarding the nature, colour and cause of injuries. The said D.W.-1 has conceded to the extent that congestion in Larynx and Thoracic Membrane, as has been found in post-mortem report in 14 present case happens in case of strangulation. The said defence-witness voluntarily stated that besides congestion frothy blood is impacted. He further stated that due to massive burn the nail and thumb mark on neck may not be visible at the time of post-mortem. 23. Thus, taking into consideration the deposition of P.W.-1, who conducted the post-mortem and the deposition of D.W.-1, who is also said to be a qualified doctor there appears no reasons to doubt the correctness of the post-mortem report (Ext-1). The P.W.-1 of course has admitted that he had not noted even a single data in the post-mortem report (Ext.-1) for basing the burn injury being post-mortem injury but his opinion as recorded in this regards was based on careful and thorough examination. He has also denied that the victim of burn injury falling on hard and blunt substance will receive injury as found in case of deceased. He has also denied that the report and findings are unscientific. 24. From the Textbook of Medical Jurisprudence and Toxicology, it can safely be said that an ante-mortem burn always shows redness of parts. If vesicle is present the blisters are surrounded by thin bright area of inflammation. They contain highly elbuminous fluid, Chlorides and blood corpuscle and after the blisters is removed the base is found to be injected. The post-mortem blisters is limited in size, contains air, or if it contains fluid. It is practically non- 15 elbuminous and without chlorides and blood corpuscle. There is no line of hyperaemia round the blister and base of the blisters is not injected. The doctor (P.W.-1) opined that burn injury on the deceased was caused after her death because there was no line of vital reaction. He has stated that to determine as to whether burn injury was ante-mortem or post-mortem, guidelines have been given in the Medical Jurisprudence and his findings are based on those guidelines. The Doctor (P.W.-1) on the basis of his personal observation by his naked eye has given his opinion regarding the burn injury to be post-mortem and there is no apparent reason as to why the doctor would give a false report and submit ante-mortem injury to be post-mortem injury. Even the doctor (D.W.-1) examined on behalf of the defence has said it cannot be said that the opinion given by the doctor in the post-mortem is not correct. Even, D.W.1 has not claimed that the death of the deceased was not due to strangulation and was caused due to burn injuries. 25. The second point taken by the defence regarding non-finding of ligature mark on the dead body of the deceased and the tongue being not in protruded condition has got no substance as D.W.-1. Dr. Upendra Prasad Verma examined on behalf of the defence has categorically stated in paragraph-3 of his Examination-in- Chief that in case of strangulation the tongue is protruded but not always. In paragraph No. 4 of his Examination-in- 16 Chief, D.W.-1 has clearly stated in case of manual strangulation ligature is not found. P.W.-1 in his cross- examination has also made it clear that in case of manual strangulation tongue would not be protruded and the deceased died due to manual strangulation and not strangulation by rope. Ligature mark would not appear in case of death caused due to manual strangulation. 26. The third point argued by the defence is that the post-mortem examination report did not find mention detail findings or data regarding burn injury being post- mortem injuries. In this regard, I have seen the post-mortem report and the deposition of P.W.-1 who conducted the post- mortem and D.W.-1 who is said to be an expert in forensic medicine. 27. P.W.-1 was confronted with several questions regarding his report however, this witness has explained each and every circumstance relating to cause of death of the deceased and has given valid reason based on Medical Jurisprudence that burn injuries on the deceased was caused after her death because there was no vital reaction and his opinion was placed on careful and thorough examination. Even, the doctor examined on behalf of the defence has admitted this fact that the Surgeon holding the post-mortem is in a better position to say regarding the nature, colour and cause of injury. He has admitted in cross- examination that the finding that the Larynx, Thoracic 17 Membrane were congested, is expected in case of strangulation. 28. Thus, I am of the view that the defence has not been able to take out anything in cross-examination from P.W.-1 which would discredit the post-mortem report. To the contrary, the trend of Examination-in-Chief and cross- examination of D.W.-1 who is also a qualified doctor goes to suggest that the death was caused due to strangulation and subsequently the deceased was burnt. The sole defence- witness has tried to make out the post-mortem report to be doubtful only because datas have not been there in the post- mortem report, but, has not controverted the findings of the doctor who conducted the post-mortem report otherwise. For this non-mentioning of data in the post-mortem report, P.W.- 1 has extensively been cross-examined but the defence failed to discredit his testimony. 29. In my view, the medical report clearly corroborates the theory of murder and thereafter causing the burn injury upon the deceased in order to conceal the evidence of murder by strangulation. 30. Now, I would like to take up the evidence of Bishwaksen Sharma (P.W.-2), informant of the present case. He has proved his signature on the oral statement on the basis of which the F.I.R. has been registered and which has been marked as Ext.-2. He has repeated the same facts as mentioned in the F.I.R. in his Examination-in-Chief and has 18 also stated that before visiting the place of occurrence together with Police Officer he had gone to Kalyanchak Chowki along with the Police Officer where a letter written by appellant No. 2 was handed over to the Officer-in-Charge. The said letter written in the hand-writing of the appellant No. 2, was identified and proved by P.W.-2 and marked as Ext.-3. 31. From the trend of cross-examination nothing relevant could be taken out in order to discredit the testimony of P.W.-2 32. Then comes the deposition of Investigating Officer of the case, Sri Ram Prasad Singh (P.W.-3). He has proved endorsement and signature in his pen on Ext.-2 which was marked as Ext-3/a, the F.I.R. which was marked as Ext-4, inquest report, which was marked as Ext-5, signature of witnesses on the inquest report marked as Exts- 5/a and 5/b, seizure list and signature of witnesses marked as