HIGH COURFOF CHHATTISGARH AT BILASPUR Division Bench Cpram : Hon'ble Shri TP^.Shaj'ma and Hon'ble Siiri R^jeshwar LaiJhanwar.JJ. APPELLANT (In Jail) RESPONDENT Cr.Appeal No. 1099 of 1993 Tulsiram Nai. Versus State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.L. Jhanwar Judge HON'BLE SHRI T.P.SHARMA, J. Sd/- . T. P. Sharma Judge Post for Dronouncement ofjudgment Sd/- JUDGE ":t -03-2010 RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:29:05 +0530 HLGHCOURT OF CHHATTISGARH : BILASPUR Coram : Hon'ble Shri T.P. Sharma and Hon'ble Shri Rajeshwar Lal Jhanwar, JJ, Cr.Appeal No. 1099 of 1993 APPELLANT : Tulsiram Nai, aged 25 years, s/o (In Jail) Maheshram Nai, resident of village Kanhaiyapara, Police Station Pali, District Bilaspur Versus RESPONDENT : State of Madhya Pradesh, through Police Station Pali (now Chhattisgarh) MEMORANDUIVI OF APPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROCEDURE CODE Appearance: Smt. Indira Tripathi, counsel forthe appellant Shri Sandeep Yadav, Deputy Government Advocate for the State JUDGMENT (Deliveredon ^.03.2010) The following judgment was delivered by R.L.JHANWAR, J. The challenge in this appeal is to the judgment of conviction and order of sentence dated 23rd March, 1993 passed by the 3rd Additional Sessions Judge to the Court of Sessions, Bilaspur in Sessions Case No. 173 of 1989 whereby and whereunder after holding the appellant Tulsiram guilty for the commission of culpabte homicide amounting to murder of his wife - Mst. Draupadi, convicted the appellant under Section 201 and 302 ofthe I.P.C.and sentenced him to imprisonment for life. 2. The conviction is impugned on the ground that without any iota of evidence, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforesaid and thereby committed illegality. 3. Briefly stated the prosecution story is that prior to solemnization of marriage with Mst. Draupati Bai (henceforth 'the deceased), the appellant performed marriage with Mst. Keja Bai. Since the age of Mst. Keja Bai at / the time of marriage with the appellant is not sufficient for performing the custom of 'Gauna', therefore, the appellant had to solemnize marriage with the deceased - Mst. Draupadi Bai. After the custom of 'Gauna', the appellant brought Mst. Kejabai with him and started living with her along with Mst. Draupadi Bai. Appellant and his mother - Jamuna Bai were paying much attention towards Mst. Kejabai used to maintain good relations with her because she looks very beautiful whereas at the same time the deceased was subjected to cruelty by the appellant and his mother which led the deceased to leave her matrimonial home. However, due to best efforts made by the appellant and his brother-in-law, the deceased again come back and started living with him. On the date of incident i.e. 08.11.1988 the deceased requested the appellant to send Mst. Kejabai to her maternal home or else threatened him by saying that she wants to sleep with his mother and not with him. The appellant got annoyed and strangulated her neck and caused her death. Thereafter, pouring kerosene oil on her set her on fire. He bolted the room from outer side and fled to his field, along with Mst. Kejabai. As a result of fire, smoke came out from his house, mother of the appellant conveyed the message to her son through one Lorikram (P.W.1) about coming out of smoke. Then appellant accompanied Lorikram and co-accused Mst. Kejabai immediately reached the spot. Despite the room being closed from outer side, the appellant forcibly broke the door with axe and entered into the room where charred body of the deceased was found below the bed, thereafter the fire was extinguished. On 08.11.1988 appellant lodged merg intimation in the police station Pali about the death of the deceased being charred by fire, vide Ex.P.6. Investigating Officer left the scene of occurrence and after summoning the witnesses vide Ex.P.7, inquest over the dead body of the deceased was prepared vide Ex.P.8. Dead body was sent for autopsy vide Ex.P.2 and autopsy on the dead body was conducted vide Ex.P.3 by Dr. G.L. Naidu P.W.9, who upon examination found the following injuries on the person of the decease: • Rigor mortis was present in both the limbs. • Tongue was protruded out and caught between the teeth. • Eyes were closed. • Blood mixed fluid was seen from nostrils and mouth. :«.: ^ '^ y--1 • The body was in burnt condition including the face, breast, both the upper limbs, hairs, back of the body and lower limbs except feet and some parts of both the lower limbs. • Some part of the lower abdomen region which beneath the "Kardhan" was not burnt * On internal examination, he also found both the lungs, trachea and larynx congested and heart and large vessels are found empty. Spleen, liver and kidneys are found congested. Uterus was normal and was of normal size. No line of redness was seen in the burnt skin and hence the burn was post-mortem in nature. Duration was within 48 hours. No definite opinion could be given, therefore, the viscera was preserved for further analysis. During the course of investigation necessary seizures were effected. Challan was filed against the accused persons on 19.11.1988 at 17.00 hours.- 4. After completion of investigation, charge sheet under Sections 302/34 and 201 ofthe I.P.C. was filed against the appellant along with co- accused persons before the Court of Judicial Magistrate First Class, who in due course committed the case to the Court of Sessions, Bilaspur. The Sessions Judge made over the case to 3 Additional Sessions Judge, Bilaspur who after receiving the case framed charges against the appellant under Sections 302/201 of the I.P.C. and the contents of the charge are read over and explained to appellanVaccused along with co- accused persons, who abjured the guilt and pleaded innocence and false implication. 5. So as to hold the appellant/accused and other co-accused persons guilty, the prosecution has examined as many as 10 witnesses. The appellant/accused along with co-accused persons was examined under Section 313 of the Code of Criminal Procedure (for short 'the Code') in which they denied the circumstances appearing against them and pleaded their innocence and false implication. Defence has examined three witnesses namely Ramji D.W.1, Jairam Sing D.W.2 and Basant Kumar Singh D.W.3, who have stated that door was bolted from inside and at the time of incident all the accused persons were at their field. .tf^' ^ 5^' 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting the co-accused persons i.e. Ms. Jamunabai and Mst. Kejabai of the charges of Section 302 and 201/34 has convicted and sentenced the appellant as aforementioned. 7. Smt. Indira Tripathi, counsel appearing on behalf of the appellant vehemently argued that the case is based on circumstantial evidence. In case of circumstantial evidence, the prosecution is required to prove the complete chain of circumstances that there is no escape from the conclusion that in all human probabilities, the crime was committed by the accused and none other than him. It was further argued that the appellant himself has lodged merg intimation vide Ex.P.5 stating therein that Mst. Draupati was all alone in the house and he and Mst. Kejabai were present at the field and on receipt of information from Lorikram he immediately reached there and broken the door which shows that he has no role. Deceased herself has poured kerosene and set herself on fire. There is no iota of evidence against the appellant to show that he committed the crime. Lastly, it was argued that the circumstances are virtually not the circumstances against the appellant sufficient for drawing an inference that the appellant is the person who has committed the offence and except the appellant nobody has committed the offence. 8. On the other hand, learned counsel for the State vehemently opposed the appeal and argued that the circumstantial evidence adduced on behalf of the prosecution is sufficient for constituting an offence against the appellant and except the appellant nobody has committed the offence. Though the doctor has not arrived at definite opinion, he has categorically and specifically opined that burn injury was post-mortem which shows that the appellant first strangulated the neck of the deceased and then set her on fire. 9. We have heard learned counsel for the parties at length and perused the judgment impugned and record of the Court below. First of all, it has to be seen as to whether the death of the deceased was homicidal in nature or suicidal in nature and in order to deal with the above question we have minutely examined the evidence of Dr.G.P.Naidu P.W.9, who has stated that he conducted the post-mortem on the body of the ^i:^fl ./i ^/^) w :sy deceased and has opined that "no line of redness was seen in the burn skin and hence the burn was post-mortem in nature and its duration was within 48 hours". Since no definite opinion could be given by the Doctor the viscera was preserved for further analysis as the burn seems to be post-mortem in nature. Thus, the Doctor has proved the autopsy report Ex.P.3. A query was asked to Dr.G.P.Naidu P.W.9 by the Investigating Officer vide Ex.P.4 and that query was answered by the Doctor vide Ex.P.4 A, according to which, there were no carbon particles in trachea and the possibility that if anybody is charred to death then in his/her nose and trachea carbon particles would be available was expressed by the Doctor. It was also stated by Doctor G.P.Naidu that no line of redness was seen in the burnt skin and thus the burn was probably post-mortem in nature. On a further query vide Ex.P.5 being asked by the Investigating Officer, the Doctor has informed vide Ex.P.5 A that if anybody has not taken meals within 48 hours or more than 48 hours, then big and small intestines would probably be found empty. The doctor has also stated that due to strangulation tongue will protrude out and will be caught between the teeth. On a query being asked to him, the Doctor has also stated that line of redness will not be found if the body is burnt after death. According to the Doctor, in post-mortem, it was not found in the body of deceased that carbon particles were present in trachea. It was also stated by him that if a person is weak or infirm, then line of redness will not be found. It was further opined by the Doctor that due to burn, it was not possible for him to find any injury on the neck. The Doctor has specifically stated that carbon particles were not found in larynx and trachea; therefore, it is clear that after death, the deceased was burnt. 10. All queries about the- death of the deceased were done by R. Tirkey, Investigating Officer. According to him, panchnama was prepared wherein it has been stated by him that eyes were open, tongue was protruded out near about 1" and caught between teeth and carbon particles were found on the tongue which was found protruded. It was also stated therein that due to burn skin was found out and reddish was there. No injury on the dead body was found. In this view of the matter, it is clear that line of redness was the main point, and therefore, a query was asked :<:'} relating to line of redness, if it was found on the body of deceased, then death would have certainly been ante-mortem. 11. So far as the evidence of the Doctor, it cannot be discarded. In Modi's Medical Jurisprudence and Toxicology, Edition 1961 at page 199, the burns inflicted are distinguished from ante-mortem and post-mortem which reads as under: Line ofRedness.— In the case of a burn caused during life a line of redness involving the whole true skin is formed round about the injured part. It is a permanent line, persisting even after death, but redness orerythema, which is found beyond this line of redness due to distension of the capillaries, is transient, disappears under pressure during life and dades after death. The line of redness, being a vital function, separates living from dead tissue, and is always present in burns caused during life, though it takes some time to appear. Hence it is possible that it may be absent in the case of a person of a very weak constitution who dies immediately from shock due to burns.." "Vesication - Vesication caused by a burn during life contains a serous fluid consisting of albumen and chlorides, and has a red, inflamed base with raised papille. The skin surrounding it is of a bright red or coppery colour. This is known as true as compared with false vesication which is produced after death. False vesication contains air only, but may contain a very small quantity of serum comprlsing a trace of albumen, but not chlorides as in a person suffering from general anasarca. Again, its base is hard, dry, horny and yellow, instead ofbeing red and inflamed." "Reparative Processes - Reparative processes, such as sings of inflammation, formation of granulation tissue, pus and sloughs, will indicate that the burns were caused during life. Burns caused after death have a dull white appearance with the openings of the skin glands coloured grey. The internal organs are roasted, and emit a peculiar offensive odour." In this manner, Doctor G.P.Naidu has not found three things, i.e., line of redness, vesication and reparative processes and it is clear that the deceased was a young lady and not anemic and infirm. It is also evident from the evidence of Dr. G.P.Naidu that burns were superficial but some part of right limbs above and right elbow was deeply burnt. The posture of body was pugilistic or fencing posture. According to post-mortem Ex.P.3, it is clear that superficial burn injuries were found over the body of the deceased and the attitude of the body was pugilistic boxer. According to post-mortem, it is also clear that redlines were not present in the burnt skin and due to temperature at different parts the body was burnt in A; ^;.f different places such as face, breast, both hands, upper limb, hair, back and both legs were burnt except lower portion of leg and waist and the burns were superficial but right elbow was deeply burnt. It is also clear from the report of post-mortem that tongue was protruded out, mouth was closed, eyes were semi-closed, trachea, larynx and lungs were congested, no carbon particle was found inside trachea and larynx, coronary veins were prominent and liver, kidney and spleen were congested. In case of ante-mortem burn, line of redness between burnt and un-burnt parts terms as 'vital reaction' is a prominent feature. 12. If the body was not burnt in open place, then in case of ante- mortem burn the person will inhale soot carbon particles and the same would be 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 but not in esophagus. The pugilistic attitude of the body is also a sign of ante-mortem burn, in case of burn injury. A body that is badly burnt assumes the appearance known as 'pugilistic attitude' and this is due to heat stiffening and contraction of the muscles, causing the arms to become flexed at the elbows and hands clenched, the head slightly extended and knees bent. The appearance resembles the position adopted by a person engaged in a fight and has led on occasions to suspicion that death occurred during some violent crime. In fact, the body assumes this position when fire starts. According to autopsy report, it is also clear that burn was superficial and temperature was not so high, therefore, immediate death without inhaling or breathing was not possible. In case of burn injury, especially by kerosene oil inside a small room not in any open place, there was every chance of inhaling carbon particles. Mouth of the deceased was closed, but tongue was protruded which is not the sign of death as a result of burn, but is sing of death due to strangulation/suffocation. Pugilistic state (fighting position) is a symptom of burn injury and also the symptom of resistance. 13. In the present case, tongue was protruded out. 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 ^. & ff^ TVi ^^r~.'- of the fact that burn injury is post-mortem and not ante-mortem. It appears that this is a case ofdeath by strangulation. 14. According to panchnama Ex.P.8, the cot in which she was sleeping was also burnt and one chimney and mateh box was also there but all other articles are kept intact. It shows that if the person was alive and he was set on fire certainly he would have tried to save him and for that he would raise alarm and moving here and there embarrassingly for saving himself. According to Doctor G.P.Naidu, carbon particles were not found in trachea and reparative processes, therefore, it is clear that after she was strangulated, she was set on fire. It is also clear from panchnama that she found dead on cot and was also covered over the body. Even if she was alive during burn certainly she would have jumped from the cot and tried to save herself. All these circumstances are sufficient for drawing an inference that she was set on fire after her death. 15. It is evident from the evidence of Lorikram P.W.1 that the deceased Draupadi Bai was wife of the accused/appellant. Jamuna Bai is the mother of the appellant whereas Mst. Kejabai is the first wife. He has also deposed that mother of the appellant - Jamuna Bai came to him and told that some smoke was coming out from his house and it seems that some fire was caught and asked him to call Tulsiram and Mst. Kejabai who had gone to field. According to this witness, he had gone to call them and just outskirts of the village appellant Tulsiram and Mst. Kejabai they were found and message of incident was conveyed to them. At that time appellant Tulsiram was having Tangia in his hand and started towards his house and this witness had also accompanied him. Along with them Mst. Kejabai was also present. He along with Mst. Kejabai saw the appellant cutting the door by Tangia. According to this witness, the door was closed from outside and not from inside, therefore, he asked Tulsiram why he was doing so whereupon the appellant told him that the door is bolted from inside whereas this witness has deposed that the door is not bolted from outside and thus it is clear that somebody bolted the door from outside after the incident. He has also stated the condition of the deceased in his statement which has already been discussed above. It was also stated that when he asked Tulsiram after e'ntering inside the /^ room how it was happened then Tulsiram informed that due to some quarrel between them he got annoyed and then strangulated her neck. In this view of the matter, the extra judicial confession made so before him is not reliable because Lorikram has not stated this piece of evidence before the police or any other person and kept silent but what he has spoken out about the position of door was not contradicted. His evidence is only evidence which supported the prosecution case. 16. P.W.2 Muritram, who is the father of the deceased - Draupadi, has stated that when Tulsiram brought Mst. Kejabai as his wife then the deceased Draupadi started quarrel with him and this has prompted the deceased to come to his house. She was accompanied by this witness when he went to her village. He has also stated that the deceased told him that he will not visit the house of Tulsiram whereupon he told Tulsi to take his daughter and Tulsiram came there and after compromise she had accompanied Tulsiram. Compromise was done before the Panchayat. In this view of the matter, it is clear that Tulsiram was reluctant over the deceased after arrival of Mst. Kejabai and due to that frequently they were not in talking terms. Laxminarayan Sharma P.W.5 has stated that when Panchayat was called, the deceased Draupadi Bai was asked by the Panchayat that why she does not want to go to the house of Tulsiram whereupon she has replied that if she will go she will not alive because of quarrel between her and her mother-in-law. Thus, it is evident from this witness the nervous and tense condition of the deceased. It has also come in the evidence of Muritram P.W.2 and Laxminarayan Sharma P.W.5 that the relations between the deceased and Tulsiram have become strained. It is also one of the circumstances which found proved in the evidence of Lorikram is that when he informed the accused about the fire being caught in his house, the accused Tulsiram came to that place with axe (tangia) and immediately tried to cut the door with that axe and not tried to open the door despite the door was bolted from outside and not from inside. This piece of evidence has been stated by Lorikram when he was with him at the time and the accused was cutting the door from outside. 10 / V 17. The F.I.R. was lodged by the appellant himself. No doubt, in order to save himself from the incident, he has lodged a false F.1.R. whereas Doctor G.P.Naidu has clearly stated that carbon particles were not found in trachea and reparative processes, therefore, it is clear that she was burnt after death and the death is homicidal in nature. It has also come in the evidence led by the prosecution that except the appellant no other person has committed the said crime. 18. For the foregoing circumstances, it is apparent that Tulsiram was only person who has strangulated her wife - Draupadi and except him no other person has committed such heinous crime and in order to conceal the evidence of strangulation, he poured kerosene oil and then set her on fire. The learned trial Court has rightly evaluated the evidence adduced on behalf of prosecution and has rightly found the appellant guilty under Section 201 and 302 of the I.P.C. but the learned trial Court has only convicted the appellant only under Section 302 of the I.P.C. and sentenced him to life imprisonment. 19. On close scrutiny of the evidence adduced on behalf of the prosecution and the defence taken by the appellant, we are of the considered view that the evidence adduced on behalf of the prosecution is sufficient for drawing an inference that the appellant committed murder of his wife - Draupadi by strangulating and after her death he poured kerosene oil and set her on fire and for this heinous crime, accusation of commission of homicidal death of his wife amounting to murder can easily be attributed to the appellant, punishable under Section 302 and 201 of the I.P.C. 20. In the result, the appeal is dismissed to the extent indicated above. The conviction ofthe appellant under Section 302 and 201 ofthe IPC and sentence awarded thereunder are affirmed. —— Sd/- r. T. P. Sharma Judge Sd/- R.L. Jhanwar Judge