JUDGMENT
P.K. Deb, J.
1. The appellant is an I.A.S. officer, who has been tried for a charge under Section 302/301 I.P.C. for intentionally committing murder of his wife, Joyes Kujur and ten of screening himself from the legal punishment by setting fire the dead body to show that she had caught fire accidentally and died of bum injury.
2. The prosecution story in brief is that on 17.5.1990 at 1 a.m., the accused who was then posted at Ranchi walked from his residence and rushed to Lalpur Police Station and lodged a written report (Ext. 4) stating inter alia that his wife Joyes Kujur died of burn injuries at 11 p.m. in the last night i.e. 16.5.1990. As per the report, on that date in the evening, the deceased Joyes Kujur went to her mother’s residence at Morhabadi and returned home at about 9 p.m. She then went to kitchen to prepare food for herself and the informant. The husband and wife alone were living in a rented house. The food was ready at 10.30 p.m. As desired by the accused when Joyes Kujur went to the kitchen to bring food for service to the accused then suddenly she caught fire and then came out with screams. There was no supply of electricity, at that time. The informant tried to put off the fire with the help of a Blanket but Joyes Kujur fell down at the bed room and died. The accused raised alarm. Some people came there from the neighbourhood but by that time Joyes Kujur died. On the basis of that report, Lalpur Police registered a U.D. case being Lalpur P.S. U.D. Case No. 3 of 1990. For enquiry into that case, the Officer-in-charge of Labour Police Station went to the place of occurrence at about 2 am. The residence is situated at Biraj Nagar which is just at the back of the P and T Colony about a Kilometer north from the Lalpur Police Station. As the was no electricity, the place could not be inspected and the Officer-in-charge locked the house of the accused and spent whole night there keeping the strict vigilance. On the next morning at about 6.30 a.m., he started minute inspection. He held inquest over the dead body and made the following observations:
(1) The tongue was protruded by an inch and pressed under the jaws.
(2) The blood oozing from the right ear.
(3) There were marks of burn injuries on the face, neck, back, waist, hip, thigh up to knee, both hands and abdomen.
(4) The deceased was bearing partially burnt blouse of purple colour, white bracier. There was no sari on the body of the deceased. Petticoat was found at some distance of the dead body.
(5) The stool of the deceased was near the dead body.
(6) The right leg and the right hand were extending and spread out below the bed.
Inquest report was prepared as Ext. 3 in presence of two witnesses, namely, Gorakh Nath Singh and Chitranjan Das and seizure list (Ext. 1) was also prepared of the following articles which were found near the dead body:
(1) A menstruating pad with some blood stains alongwith its belt which was kept at a distance of 1 ft. from the dead body.
(2) A full paint of the deceased to which one burnt polyester shirt was stuck. A part of the burnt, shrunk polyester Sari was also sticking to the full paint.
(3) The Sandal of the one foot of the accused was found near the dead body where as another one was kept on the rack.
(4) The sandals of the deceased was found kept under the bed (Palang). Her hair pins were found on the bed.
(5) Half burnt cigarette and match sticks were found in the bed room and the kitchen.
After observation of the position in the bed room and in the kitchen and on scrutiny of the dead body and the materials found nearby the dead body, an FIR (Ext. 6) was lodged by the Officer Incharge on 17.5.1990, to the effect that the whole occurrence seemed to be a mysterious one when it was found that the informant never took any steps for sending his injured burnt wife to hospital or to bring a doctor. Even the son and the brother of the deceased were informed on the next day i.e. 17.5.1990. The people of the neighborhood were unaware of the incident. As such, the Officer-in-charge, came to the conclusion that it was a case of murder and in the FIR it was mentioned that the motive behind the murder was that on the date of occurrence as the deceased was menstruating she did not agree to the sex urge of the husband informant and as such there was protest from her side as a result of which the informant accused became angry and pressed the deceased by her neck as a result of which she died and to cover up the murder the accused put fire on the dead body. There is also another motive behind the murder as mentioned to the effect that the relation of the accused was strained with the deceased due to illicit relationship of the accused with one lady Usha Rani Singh of Hazaribagh and as such the husband and wife were not maintaining good relationship.
3. On inquest, the dead body was sent for post mortem examination and it should be mentioned that before the report of Post Mortem examination could be available the Officer-in-charge hurriedly made the FIR. In court of investigation, some witnesses were examined including the brother of the deceased and some neighbouring people and then chargesheet was submitted against the accused-informant under Sections 302/201 I.P.C. The ease was committed to the Sessions on 30.8.1990 and then charges were framed against the accused-appellant under Section 302 IPC vide order dated 12.10.1992. When the charges were read over and explained to the accused-appellant, he pleaded not guilty.
4. Defence case is complete denial of the occurrence as alleged in the FIR. According to the accused, the death was an accidental one. The deceased had gone to kitchen to take food an she caught fire in the kitchen. She rushed to the bed room under flames of fire and dashed against the wall of the bed room and thereafter fell down and died. The accused tried to save her from fire by putting blanket on her body but unfortunately she died. In the process of saving the life of the deceased, it is alleged that he sustained the burn injuries in both of his hands. He further denied about the bad relationship between him and his wife rather according to him, their relationship was always cordial. He had also denied about any illicit relationship with alleged Usha Rani Singh.
5. For and on behalf of the prosecution, as many as 10 witnesses have been examined in the case while the defence examined only one witness, namely, DW 1, who happens to be the son of both the accused and the deceased. He supported the case of the accused.
On scrutiny of the evidence on record, the learned Court below came to the finding that although the case rested only on circumstantial evidence but the prosecution could be able to prove that the deceased was killed by her husband, the accused and afterwards set her on fire to demolish the proof of murder for screening himself from legal punishment and as such he did not make any attempt for saving the life of his wife nor informed the police or hospital.
6. The motive behind such killing as alleged by the prosecution to the effect that the deceased’s denial of sexual relationship on that very date because of her menstruation and as such on being enraged the husband killed her was disbelieved by the court below but held that the death was definitely caused by the husband and motive behind the same was his illicit relationship with alleged Usha Rani and to get away the objection of the wife she was made to death by the husband. The theory of strangulation as alleged by the prosecution for causing death was also disbelieved by the learned court below as there was no ligature mark on the neck of the dead body but the learned court below presumed that death must have been caused by making suffocation by putting pillow on her mouth and nose and when she died then her dead body was brought out of the cot and then she was set on fire and on such presumption learned court below held the accused guilty of the crime and convicted and sentenced him as mentioned above.
7. Thus, we find that the learned court below made out a third story in the case which was neither the case of the prosecution nor the case of the defence for convicting the accused-appellant in this case.
8. Mr. P.S. Dayal, the learned Counsel appearing on behalf of the appellant at the very outset has strenuously pressed upon that in a criminal case, there is no scope of making out any third story by the court himself for the purpose of basing conviction. His further submission is that the whole impugned judgment is based on erroneous conception of law and the learned court below, only to base his conviction by hook and crook made out a third story, although not been established or brought out from the evidence on record. He has referred to many rulings of the Apex Court in support of his contention which I would be dealing later on after discussion on the facts in the case.
9. The present case is in the nature of bride burning and in such cases the matter is required to be dealt with very cautiously when there remained no direct evidence to the alleged murder. The demeanour and conduct of the accused person are very much relevant in such cases as contemplated under Section 8 of the Evidence Act.
In the present case, admittedly only the accused and the deceased were present in the house at the relevant time of occurrence so it was the accused who can be the best person to explain the incident because definitely the death was an unnatural one. The explanation given by the accused shall be taken into consideration in the facts and circumstances of the case. In such sort of cases, now a days always finger is raised and pointed out towards the husband or the in laws. Here the question of in laws are not there. Only the husband is there. The husband and the wife bom have spent their young life happily as is presumed from the fact that they had grown up three children at the alleged time of occurrence. The brother of the deceased, PW 8, namely, David Hector Phillip had practically pointed out towards the bad relationship between the husband and the wife and has also brought in the story of illicit relationship of the accused with alleged Usha Rani of Hazaribagh and he has mentioned that his sister complained to him about two years back that her husband was indulged in illicit relationship with alleged Usha Rani Singh. But this has also brought in evidence from the side of the defence that the children of Usha Rani Singh had considered the accused and the deceased their god fattier and god mother, which show that the relationship between two families were having much sanctity than the alleged illicit relationship.
10. Be it what it may the case started when the accused himself had given a written information to Lalpur Police Station on the very night of occurrence and by giving description of we death of his wife. He gave it after about 2-3 hours of the occurrence, admittedly and he came to the police station on foot and gave a written report to the effect that his wife died of an accidental death due to burn injuries on her person. The story given by him had already been indicated above. Police inspected the place of occurrence in the early morning hours of the next day by keeping the house under lock and key for the rest of the night. The position and circumstances at which the deceased was lying dead were noted, seizures were made and then even before getting the report of the autopsy, police filed the first information report in this case bringing allegation of murder against the accused. It is some what unnatural and hasty so to say because without getting an ink-link regarding the medical report, police on surmises brought the allegation of murder against the accused. This might have caused some sort of raising of eye brows and might suggest of hands of PW 8 in bringing the allegation. PW 8 has all along stated that after reaching the place of occurrence in the early morning hours, he was satisfied that it was a case of murder and his brother-in-law was responsible for it. But, he did not file any FIR rather police had filed the same even before completion of the enquiry of the U.D. case registered.
11. Let us now first of all consider the medical report in this case.
It should be borne in mind that the case had sensational effect as the accused was an I.A.S. Officer and both the accused and the deceased both coming from the tribal community and they were definitely from the high strata of the Society. The post-mortem was held on the next day not by a single doctor but by a Board consisting of three doctors headed by Dr. Renu Bala which presumes that much caution was taken from the very beginning. Out of three doctors, the chairman has not been examined but only a Member of that Board Dr. Ajit Kumar Chaudhary examined himself as PW 7. He found the following injuries on the person of the deceased:
(a) Dermo epidermal burn involving right cheek, left cheek, chin, neck, both arms, both fire arms and medical side of both palms front and back of chest, front and back of upper half of abdomen with vesicles. The base and periphery of vesicles showed redening and hypersomia. The vesicles contained serious fluid at places. There are presence of seets in the respiratory passage including epiglottis. This injury (a) was found antemortem in the opinion of the doctor and Sane was caused by burn.
(b) Haemorrhage spots over epiglottis and adjoining area with in filtration of blood. Trachea contained food particles. This injury was also found antemortem caused by mechanical asphyxia.
(c) There was contusion of scalp in the left side frontal region and associated right frontal region and occipital region. The injury was ante-mortem in nature caused by hard and blunt substance.
(d) Dermo epidermal bum involving lower half of abdomen, front and back both buttucks, both thighs, parihoum and upper half of both legs. In these parts the vesicles were limited in size. There was no evidence of hyperaemi. The base of these area of vesicles were dry hard and yellowist. The injury No. (d) was post mortem in nature caused by burn.
In the opinion of the doctor PW 7 the death was due to mechanical asphyxia, head injury and the burn. The doctor categorically opined the presence of sub-conjunctival haemorrahage, froth and food particles in nostrials, partially protruded tongue cyonised nails and contusion of membrance of lips suggested mechanical asphyxia. He further stated that no histological test was made to distinguish between ante-mortem and post mortem injury and that no spectrosefic examination or chemical analysis with elladium chloride or ultra violet spectroscopic test was made for such determination as those were not available at the R.M.G.H. where the autopsy was held. It had further been definitely opined that ligature mark on any part of the body was not there and there was no sigh of menstruation on the body of deceased at the time of her death.
12. These findings totally belied the prosecution assumption of the story of killing by strangulation as because of the denial of the sex by the wife caused by the husband. The doctor and further opined in his cross-examination on a question put by the court that the mechanical asphyxia means asphyxia by external force of any Kind. He had further stated that in exceptional cases of mechanical asphyxia may occur accidentaly by the self motored through the hands of the deceased also in case of suffocation and coughing and coughing or suffocation might be caused due to smoke.
13. Much emphasis have been given by Mr. Dayal on such observation of the doctor in his submission. According to him, when there was possibility even in rarest of rare cases of self motoring by the deceased then the benefit must have gone to the accused. His further submission is that learned court below unnecessarily taxed his brain for deleting such possibility as opined by the doctor to the effect that the windows of the house must have opened as it was summer season and that when windows were opened even if there was smoke for fire on the body of the deceased there was no scope of suffocation and coughing and then self motoring.
14. It must be said that there is no evidence to the effect that the windows were open at the time of alleged occurrence or even after the occurrence. When such presumption has been taken by the learned court below, the alternative presumption might also be there to the effect that if a husband wants to kill his wife within the room itself then he must have closed all the doors and windows so that there might not be any possibility of coming out of any screems or sign of any sort of struggle by the deceased at the time of alleged murder. When there are two possibilities then the possibility which supports the defence should always be taken by a criminal court and that is the basic principle of criminal law.
15. The learned court below in his impugned judgment quoted the authority of medical jurisprudence by Dr. Parikh in his book Medical Post Mortem regarding the diognosis of post mortem and ante mortem difference. Only a part of the observation and the passage has been quoted by the learned Court below in his impugned judgment to get support his contention to the effect that the burn injuries were only post-mortem burn and not ante-mortem burns. But the authority of Modi and Taylor are different in this aspect. In page 195 of Medical Jurisprudence by Modi, it has been elaborately held as to how and by which method the distinction between ante mortem and post mortem injury would be found. They are:
(i) Line of Redness (ii) Vesication, (iii) Reparative processes.
But none of those tests have been conducted to form conclusive opinion regarding the distinction between ante mortem and post mortem burns. It seems that only on clinical test the opinion of post mortem burn injury have been opined by the doctor concerned.
16. On close scrutiny of the post mortem report and the doctor’s opinion in that respect, I am of the opinion that in this case it cannot be held positively and beyond all reasonable doubt that the burn injuries caused on the person of the deceased were due to post mortem burns made by the accused or somebody else after the deceased was made to death either by strangulation or by suffocation. The strangulation death has already been negatived by the doctor himself who was one of the pasty in the autopsy held on the dead body of the deceased. The carbon monoxide were found on the nostrils and on the vocal cods which might rather display about the ante mortem burn injury.
I have gone through the authorities on this type by Cox, Taylor and Modi and I am of the opinion that the doctor’s opinion on the basis of the post mortem cannot be conclusively be taken for granted that the burn injuries on the person of the deceased were post mortem only. If there remains such doubt regarding the causing of burn injuries post mortemly then the whole case of the prosecution must fall like casstle of cards. Even, though-there might be strong doubt or suspicion against the accused-appellant in this respect. It is also established fact that suspicion however strong it might be cannot take the place of proof in a criminal trial.
17. Coming to the other aspects of the matter, the motive behind the murder is alleged for illicit relationship between the accused appellant and one alleged Usha Rani. There is no material in the records except the version of PW 8 as mentioned above. Usha Rani has not been examined in this case and it seems that there was no investigation to that effect by the Investigating Agency in this case. Moreover, in this case the other aspects of the case has been totally ignored by the learned court below. Admittedly, there were burn injuries on the hands of the deceased (although explained by the learned court below but not in its proper perspective) and there was a blanket on the body of the deceased having marks of burn injury on it. These two facts lend support to the story of the appellant to the effect that he tried to extinguish the fire by putting blanket on the deceased and in that process his palms were burnt and also his full paint was tagged with part of the burnt polyester saree which was admittedly in the wearing of the deceased. The marks on the wall of the bed room had not been scratched and sent for chemical examination which ought to have been done from the side of the prosecution agency. Rather those marks go to support the defence version that on being caught fire the deceased tried to dash against the well for extinguishing and in that process there were marks on the wall with burnt pieces of Polyester Saree and skin. When the body was mere and petty coat was found lying by the side men also it can be supposed and drawn inference that attempts were made to get the deceased saved from being totally burnt.
18. The allegation regarding illicit relationship of the accused with Alice Usha Rani has not been supported by any other family members of PW 8 rather the same has been belied by the evidence of DW 1, the son of the deceased and the accused, It is also evident that no marks of violence nor any sort of struggle could be found in the place of occurrence. If the lady was suffocated by putting pillow on her mouth and nostrils then there must have been some sort of struggle signs, but that was not there.
I have already stated that this story is a third story made out by the learned court below himself when the theory of the prosecution failed miserably on the evidence of the Doctor. The possibility of the defence story is already there when it could be found that there was two or more burnt match sticks inside the kitchen. Only because the articles in the kitchen were found to be properly arranged, it does not go to show that the defence story of preparing of food by the deceased was belied. The deceased might have tried to burn the match stick for getting the food prepared already hot in Gas Stove and before doing so, she caught on fire by the match stick. This possibility can also not be totally brushed aside.
19. From all these, I find that there are glaring infirmities in the prosecution story and the other possibility of the accidental death as alleged by the defence has totally been ignored while coming to a decision by the learned court below. His whole approach is one sided as is evident from the impugned judgment itself. Only convenient witnesses or the evidence should not be taken into consideration for purpose of proof of the prosecution story.
(Reference : 1993 Cr.L.J.R.)
There should not also be surmises and conjectures alone for proving the case against the accused-appellant. It is true that in such cases, some sort of stretching of imagination is necessary as the whole case depends on circumstantial evidence alone. But inference and stretching of imagination, should not be based on surmises or conjectures alone. This has been depricated by the Apex Court in very many cases and reference may be made to .
20. In the present case, as I have stated above, mere might be two possibilities as alleged by the prosecution and as also shown by the defence and when evidence is also found to be balanced then suspicion alone, however strong it might be, cannot finger towards the accused for his conviction alone. The accused is entitled to get benefit of doubt.
21. Mr. I. N. Gupta, learned A.P.P. appearing on behalf of the Prosecution has strenuously argued that the case has been proved beyond all reasonable doubt as is required for proving of such cases of bride burning. He has referred to 1991 (1) B.L.J. 311.
The facts of the reported case is totally different from the present case. In that case, there were previous instances of torture on the deceased and in such circumstances, this Court held on the basis of medical evidence, which ruled out suicidal or accidental death, that the case was a case of homicide and as such conviction was upheld. Similarly, in , the medical evidence was totally clear to the effect that there was death by strangulation first and then the body was set on fire and as such when only husband was found to have access to the room of the deceased, his conviction was upheld by the Apex Court.
22. Here the very basis of medical report in shrounded with doubts. There is no positive proof to the effect that the death was caused before hand and then the body was set on fire. In such circumstances, those two rulings as cited from the side of Mr. Gupta have no bearing in the present case.
23. Definitely, there were sufficient grounds of strong suspicion against the accused-appellant. He being a well educated responsible officer had not made any attempt to save the life of the deceased by calling the neighbours and then sending her for medical treatment rather waited till her death and then to inform the police. This is definitely unnatural for a normal human being of his status. The neighbours were also not called. But, it has been stated in the information lodged by the accused-appellant that neighbours had arrived at the place of occurrence after the occurrence. There is no denial to this fact from the side of the prosecution totally but they wanted to show from the evidence of PW 9 that even next door neighbour could know about the occurrence only on the next date. Even if the circumstances stated above creates a strong doubt about the conduct of the accused which might be relevant under Section 8 of the Evidence Act, but, as I have stated earlier those suspicions cannot take the place of proof when the prosecution failed to bring book conclusive evidence of murder against the accused-appellant. It should also be mentioned here that all the alleged circumstances which went against the accused’ appellant have not been put to the accused-appellant under Section 313, Cr.P.C. for the purpose of explanation and as such taking all those circumstances without having explanation from the accused-appellant should not be taken into account for the purpose of conviction against the accused and this has been observed and held by the Apex Court in .
24. For the purpose of brevity, I have not discussed about the evidence of individual witnesses in the case as the same has been discussed thoroughly in the impugned judgment, although not in proper perspective as I have mentioned earlier.
25. In the results, as per discussions made above, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside and the accused-appellant is acquitted on benefit of doubt and is relieved of his bail bond.
R.N. Sahay, J.
26. I agree.