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Bombay High Court
State Of Maharashtra Through The … vs Prabhudayal S/O Hiralal Dajjuka … on 16 November, 1992
Equivalent citations: 1993 (1) BomCR 410, (1993) 95 BOMLR 31, I (1993) DMC 137
Author: A Desai
Bench: A Desai, G Patil


JUDGMENT

A.A. Desai, J.

1. This appeal by the State is directed against the finding of acquittal recorded in favour of original accused/respondents for the offences punishable under section 302, 498-A, 201 read with section 34 as well as under section 306 read with section 34 of the Indian Penal Code.

2. The facts leading to the prosecution are precisely as thus –

On 28-4-1984 deceased Sangita, daughter of P.W. 8 Madanlal of Paratwada, district Amravati got married with Accused No. 2 Rajkumar s/o accused No. 1 Prabhudayal and accused No. 3 Smt. Sushilabai. Accused No. 4 Ku. Mohani is also their daughter. After marriage deceased Sangita started residing at her matrimonial place at Murtizapur, district Akola with accused persons. Between the night of 14th and 15th September, 1984 Sangita was found dead in a mysterious circumstances in the compound of rear side of the residential premises of the accused. Accused No. 1 Prabhudayal at about 3.45 a.m. on 15-9-1984 submitted a report vide Ex. 82, wherein he has stated that at about 2.10 a.m. in the night Sangita was found to be burnt and died in the bath room. P.W. 9 Mundhe gave instructions to the accused persons not to disturb the situation. Initially on the report accidental death was registered. P.W. 9 Mundhe reached to the spot on 15-9-1984 at about 10 a.m. He drew spot panchanama vide Ex. 63. He also attached a post card half burnt and found by the side of the dead body marked as Ex. 62. He thereafter drew inquest panchanama vide Ex. 64. P.W. 5 Bhanudas acted as a panch. P.W. 9 Mundhe since convinced that it being a case of murder, lodged a report on behalf of the State registering the offence punishable under section 302 read with section 34 of the I.P.C. P.W. 3 Dr. Lande on 15-9-1984 at about 5 p.m. conducted the autopsy. P.W. 9 Mundhe, Investigating Officer after recording the police statements amongst others of P.W. 1 Shivraj, who is the resident of neighbourhood and P.W. 2 Bahadursingh, who was a Gurkha engaged for patrolling duty, submitted the final report of the investigation.

3. The learned Additional Sessions Judge, on the basis of material on 30-9-1984 framed a charge under section 302, 49A and 201 read with section 34 of the Indian Penal Code. Accordingly he proceeded to record the evidence of P.W. Nos. 1 to 8. Thereafter by order dated 22-8-1988 the learned Judge framed the additional charge for the offence punishable under section 306 read with section 34 of the I.P.C. It is reported that challenge to this order ultimately failed. Accused persons were accordingly tried. Their defence was consistently of total denial.

4. It appears that during the course of arguments the learned prosecutor did not think it proper to press for the offence punishable under section 302 read with section 34 of the I.P.C. since according to him the same is based on conjectures of Investigating Officer. According to the prosecutor, the only case made out from the material was for the offences punishable under sections 306, 49-A read with section 34 of the I.P.C. The learned Judge merrily endorsed the statement as made. He has not discussed the relevant evidence. He has not even cared to frame the point of determination in this behalf. The learned judge has commented that the evidence in this regard is of inferential in nature. The charge under section 302 read with section 34, therefore, cannot be sustained. Accordingly he recorded the finding of acquittal. He further held that the charge for the offence punishable under section 201 as a consequence obviously does not survive.

The learned Judge has observed that “Sangita died due to 100% burn injuries causing shock with asphyxia and it was not an accident, leave the only inference that she committed suicide; this fact not only is not disputed but even admitted and hence needs no further discussion. “He further held while answering the point for determination that prosecution failed to prove that the accused persons with their common intention treated Sangita with cruelty or thereby abetted her to commit suicide. With this reasoning the learned Judge further recorded the finding of acquittal for the offence punishable under section 306 read with section 34 of the I.P.C.

5. The most intricate question before us is, what is the nature of death, whether Sangita met with suicidal or homicidal death?

Mr. M.R. Daga and Mr. M.M. Agrawal, the learned Counsel for the accused vehemently opposed the question. According to them, this question does not survive any more. They urged that the prosecutor at the trial stage has conceded that there is no case for the offence punishable under section 302 of the I.P.C. As such in the submission of the learned counsel the State now cannot turn round and claim conviction for the offence punishable under section 302 of the Indian Penal Code. The second limb the of argument is, that the learned Judge, by an order dated 22-8-1888 framed the additional charge for the offence punishable under section 306 of the I.P.C. This framing of additional charge completely negates the theory of murder in pith and substance. As such, it is strenuously pressed that in this appeal the Court cannot go into the question as to whether Sangita met with homicidal death. The scope of appeal, according to the learned Counsel is confined only to the question whether the accused persons in any manner were responsible for abetting the suicide as committed by deceased Sangita. According to us, the argument as advanced is completely and legally misconceived.

6. Allowance of the learned Prosecutor or even of the defence Counsel by way of concession does not put a seal of finality to the case under trial. Their approach or attitude is not conclusive. If the material as placed during the trial prima facie constitutes any of the charge as levelled, such concession or allowance does not wipe out the same. Despite concession it is not only open for the learned Judge but it is a judicial duty to scan the material on record and reach to his own conclusion. To be always guided by such concession from the Counsel for the parties would eventually lead to miscarriage and the learned Judge could not be unmindful of this.

7. No doubt, section 306 of the I.P.C. envisages suicidal death, it undisputedly excludes homicidal death. However, subsequent framing of the charge under section 306 does not, by itself, wipe out the charge earlier framed under section 302 of the I.P.C. Such additional charge is always in the alternative and not by way of substitution. For the purposes of trial and adjudication both the charges do co-exist. They are not mutually exclusive. However, ultimate conviction can only be recorded for either of them. Complexity of the facts in a particular set of circumstances may lead to uncertainty. A particular charge even if apparent, as the facts and circumstances which are intricate and overlapping, may not rule out the probability of another charge. Some time such fact may constitute more than one charges. In such eventuality recourse to frame charges in addition or in the alternative is legally permissible. The same is statutorily recognised by section 221 of the Code of Criminal Procedure. The ground as raised is, therefore, rejected.

8. Now we propose to examine the principal question as to the kind of death Sangita suffered on the date of incident.

Undisputedly, body of Sangita suffered 100% burn injuries; smell of kerosene was also noticed in the spot panchanama. According to P.W. 3 Dr. Lande, who conducted the autopsy, on opening of trachea black particles were found. It indicates, according to him, burns being ante-mortem. He, therefore, recorded, in his opinion the cause of death was due to shock and asphyxia owing to 100% burns. Even accepting this medical evidence on its face value, one cannot rush to an irresistable conclusion that the death was suicidal. It is still to be ascertained that the act of pouring kerosene oil was whether voluntarily by the victim or the act of third person.

9. The learned Judge has not completely discussed the entire medical evidence. He has not even referred to spot panchanama. He hastily reached the conclusion of suicidal death. He recorded that Sangita determined to commit suicide and she did it. Adopting these reasoning, he then made hectic endeavours to rationalise the same. The entire approach of the learned Judge is thoroughly unsatisfactory and grossly erroneous.

The learned Counsel for the defence tried to support the reasoning and finding as recorded. They pointed out from the spot panchanama that all the doors leading to the compound were latched from outside. This precaution perhaps was taken by deceased Sangita so that no inmate of the house could reach the spot. This shows the determination and she took all possible measures to prevent any intervention by the inmates of the house in her mission to bring an end to life. We propose to deal this aspect at the appropriate stage. We proceed to deal with the reasonings of the learned Judge.

10. P.W. 3 Dr. Lande, opined that :

“But few persons if determined to get burnt may not give cries while burning”

The learned Judge relying on this, proceeded to observe that “there is no history suggested to or given by the prosecution witnesses that deceased Sangita was weak of hear”. He then drew a conclusion that “Sangita determined to end her life is more acceptable and that explains her sufferance without outburst of cries.” This is nothing but, according to us a superstition. In the absence of any positive evidence one has to presume normal state of affair of normal person. One cannot imagine a self immolation on supernatural strength. Extraordinary virtues of a person to forbear acute sufferance even without slight demur could not be a matter of imagination, unless there has been definite indication with unequivocal term. A determination to suffer extreme pain in silence could not be a matter of speculation. Inference of the learned Judge is judicially illogical. We have to visualise normal conduct of a person with common virtues.

Undisputedly at the time of incident, deceased Sangita was a young girl of only 20 years. P.W. 8 Mandanlal deposed that she was in an oppressed mood at the time of her last visit (August) to Paratwada. As per P.W. 8, just two days before the incident while on phone talking with witness, she was sobbing. It is explicit that she could not control her emotional out-birst even in presence of her father-in-law (accused No. 1).

She was a girl of normal bent of mind with usual youthful sensitivity. There were not even remote symptoms of abnormal forbearance with Sangita. Even otherwise a strong determination to do a particular act and to bear the consequence thereof cannot be of one and same equation. P.W. 3 Dr. Lande says that “in third degree injuries the victim suffers extreme pain. Such injuries will make the person give out cries and shouts for help.”

The shouting or crying of Sangita was not only obvious but inevitable. Undisputedly, none has heard the cries or shouts of Sangita while she was in flames. P.W. 1 Shivraj has merely heard the shrieks and then saw after quite some time a burning, but he does not refer to any cries or shouting. This circumstance does not support the probability of suicidal death.

11. The learned Judge to support his reasoning of suicidal death placed reliance on Ex. 62, a half-burnt post card found near the dead body. It is reproduced in vernacular in para 9 of the impugned judgment. This was written by the deceased to her father. Therein amongst other Sangita refers her plight and the accusation and abuses which she was receiving from the accused persons. She cautioned to destroy the letter immediately after reading. She further warned her father, P.W. 8 not to visit Murtizapur. Day of visit would be her last day of life.

With great deal of discussion and citing the authorities, it appears that the learned Judge has treated this letter Ex. 62 as a dying declaration contemplated under section 32 of the Evidence Act. For quite some time Mr. Ahmed, learned A.P.P. also canvassed on the same line. This could not be an error in judgment.

The learned Judge has not read the text of Ex. 62 as it is, but made a vigorous attempt to interprete it on the strength of letter marked as Article E, which was seized by P.W. 9 Mundhe during the search. This letter is not proved. The handwriting of Sangita is also not proved. This was also not confronted to P.W. 8 Madanlal. Making use of this letter for ascertaining or interpreting the purport of Ex. 62 was highly illegal.

The learned Judge made a speculation that on arrival of father or any member of the family at Murtizapur, Sangita would have been exposed about her affairs. She, therefore, decided to commit suicide. Such inference is not only misplaced but is completely ill-conceived. The approach and reasoning adopted in this regard in any manner suffers with perversity. Such invention has no foundation with the material on record. It is pertinent to note at this stage that nothing was put to P.W. 8 Madanlal in his cross-examination about her affairs with Rajendra Bhaosar or with anybody or about her character. The learned Sessions Judge was, therefore, wholly unjustified in drawing an inference that Sangita was apprehensive and to save herself from exposure she decided to commit suicide.

12. Undisputedly the evidence reveals that Sangita returned from Paratwada after “Shrawani Mass” a week before the incident, probably by 7-9-1984. She was subjected to insinuation on ear-poisoning by two ladies namely Savita and Shobha. Accused used to refer her as “Awara, Loafer, Badmash”. She wanted to bring this to the notice of her father. Earlier P.W. 8 Madanlal assured Sangita during her stay at Paratwada to visit Murtizapur and pursuade accused persons not to illtreat her on the count of dowry. It was all the more probable for Sangita on arrival of her parents to Murtizapur, they might suffer similar insult or humiliation at the hands of accused persons. That perhaps could not be bearable to her To deter them from reaching to Murtizapur, she tendered an ultimate warning, of her death.

A bare reading of Ex. 62 makes it very clear that Sangita refers to eventuality on arrival of her parents at Murtizapur. This would be the event in future. The letter does not disclose the circumstance leading to her death. By no stretch of imagination it could be a dying declaration. The letter at the most permits to draw a conclusion that it could be her determination to commit suicide if her parents or any member of the family reaches to Murtizapur. Execution of such determination would depend on the event in future namely the arrival of parents and which didn’t occur. It is thus explicit that she never intended to commit suicide then and there. The pertinent aspect from Ex. 62 is that Sangita wanted her father P.W. 8 to read the letter and destroy the same immediately so that the contents thereof may not get circulated. The undisputed aspect is that the letter Ex. 62 even did not reach the post office. The crucial message could not pass to P.W. 8. Before accomplishing her design to convey the message, to bring an end to life is next to impossibility. Sangita could not simply think of committing suicide while in possession of Ex. 62. This aspect is a counter to the probability of suicide.

13. Undisputedly, from the postmortem report it is apparent that at the time of incident Sangita was having a pregnancy of 3-4 months. This aspect of the matter is also not in tune with an act of commission of suicide. We therefore, record that Sangita has not committed suicide and she met with homicidal death. The more decisive circumstances are still ahead.

14. The learned Sessions Judge has committed to discuss the complete evidence of P.W. 3 Dr. Lande and postmortem report Ex. 50. No doubt P.W. 3 Dr. Lande has opined death due to asphyxia owing to burning of 100%. The postmortem report and the evidence of P.W. 8, however, further specifically pinpoints that the eye-ball and tongue of deceased Sangita were found protruding. Blood was found discharged from the mouth and nose. Oozing of blood had also reference in inquest Ex. 64. Dr. Lande has not explained the cause of these injuries. None including the Court has asked him. Surprisingly this piece of evidence is completely ignored. However, in case of death due to burning such injuries cannot be sustained. None could suggest that these injuries could be post-burning. The defence despite our repeated insistence, could not suggest that such injuries could be a result of 100% burns. These injuries are certainly pre-burning.

This leads to a definite conclusion that Sangita was assaulted before she was set on fire. There might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person.

This aspect is fortified by the evidence of P.W. 1 Shivraj. This witness is a resident of neighbourhood. At about 12.30 in the night on the day of incident when he was standing on the corner of the house of the accused persons he heard a shriek. He felt it of a woman and as a result of strangulation. He also stated that the shriek was from the house of the accused. This piece of evidence does not suffer in any manner from any discredit either by omission or contradiction. The defence, to make his evidence as of interested person, tried to suggest that the witness was the Vice President of Bhartiya Janata Party. The accused No. 1 is the member of a Congress party and, therefore, he intended to drag falsely the accused in the crime. The suggestion to tarnish the witness is completely futile. Even otherwise, it is not brought on record as to what was the position held by the Accused No. 1 in the Congress party so as this witness to cherish any vengeance or grievance of rivalry for the political reason. The statement of this witness was recorded on 16th of September, 1984. However, the delay does not bring any discredit. From the evidence the witness is truthful. His presence near the spot was also quite natural.

Taking into account the medical evidence indicating protruding of eye-ball and tongue and bleeding from nose and mouth read with the testimony of P.W. 1 Shivraj, we arrive at a definite conclusion that Sangita met with the homicidal death.

15. As per the spot panchanama Ex. 63, iron bar was found near the dead body. Similarly a ball of cloth half burnt was also found by the side of the body. It appears that after assault when Sangita was semi-dead, the ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts. P.W. 5 Bhanudas who is a panch witness has also said that there were dragging marks. It appears that the deceased after assault was dragged and kept at the spot. The accused persons in their statements under section 313 of the Code of Criminal Procedure have not in any manner explained the noticing of iron rod and eye-ball near the dead body.

The spot panchanama also refers certain articles by the said of the dead body. However, those articles were not disturbed. It, therefore, indicates that while on flames Sangita did not make any movement. It is thus abundantly clear that while in flames she was completely motionless. This further fortifies our conclusion of homicidal death.

In the set of circumstances latching of doors leading to the open compound from outside, we cannot accept as the act of dead. Latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring colour of suicide to the incident.

16. Now, the question before us is, who is responsible for homicidal death of Sangita? Looking to the nature of the incident it could not be an act of an individual. It was joint venture.

No doubt, there is no direct evidence. Undisputedly accused No. 1 Prabhudayal, at the time of settlement of marriage between Accused No. 2 and Sangita made a demand of cash of Rs. 20,000/- with some ornaments and articles. The list was accordingly drawn at the time of settlement of 1-4-1984 which is marked as Ex. 73. P.W. 8 Madanlal has categorically said that he could not fulfil the demand of gold and cash of Rs. 20,000/- as he had performed two marriages. He said that he assured that demand would be fulfilled after the harvest of the crop. Non-fulfilment of a demand at the time of marriage or immediately thereafter appears to have created bitterness amongst the accused. Sangita has aptly referred in Ex. 62 about the comments of the accused persons in vernacular which reads thus :

” cnek gSS ,d eaMi es n knh dj n ”

It definitely indicates that the accused persons had cherished a very serious grievance against Sangita and her parents since marriage.

17. Undisputedly, the payment of Rs. 20,000/- was not made nor the other items were given till the incident. Sangita visited the place of her parents at Paratwada for second time during the month of Shrawan (August). P.W. 8 Madanlal has said that she was found in a very disturbed mood. She disclosed on insistence that the members of the family beat and ill-treated her for the reason of non-fulfilment of dowry and other articles. After Shrawan Sangita returned a week before the incident to Murtizapur. Just two days before the incident P.W. 8 Madanlal enquired about her safe reaching on phone. She was very unhappy and weeping. P.W. 8 Madanlal in his testimony has said that he had assured the daughter not to worry and that he would soon come to Murtizapur. This circumstance from the evidence of P.W. 8 is definite and categorical. It does not suffer from any omission or contradiction. Certain letters addressed by him were confronted to this witness pointing out that there was a total absence of a reference regarding making of payment of the amount of dowry or ill-treatment. P.W. 8 has rightly clarified that the reference in this regard as to demand of dowry or ill-treatment is not to be made in such letter. This is quite obvious and genuine. These are the normal letters asking wellbeing of the relations and wishing them well. Omitting to make a reference of such sensitive and pertinent aspect in such letter is quite obvious and with full justification. Therefore, the omission in this regard in the letter does not harm the credibility of the testimony of P.W. 8 Madanlal referred to above.

18. Ex. 62, which is a very crucial document suggests that on ear-poisoning by one Shobha and Savita she was being consistently accused and harassed as of a bad character and the members of the family were after her for the entire day. This has a reference to Accused No. 1 Prabhudayal, Accused No. 3 Sushila and accused No. 4 Mohani. Ex. 62 further refers, at the instance of accused No. 3 and 4, Accused No. 2, her husband Rajkumar also completely stopped talking with her. Her plight was miserable and she had to carry her night by lying down on the floor. It is crystal clear that she became a victim of venom of accused persons. This situation as prevailing in the house indicates that to the accused persons she was completely undesirable in the family. Motive concealed in their mind then could probably to get rid of her.

19. Article No. 1 is a handkerchief discovered at the instance of accused No. 1 on memorandum Ex. 68 and was seized vide Ex. 69 from the drawer of a table in the office. This discovery was effected after 14 days of incident. This would not have otherwise of any significance. However, it has assumed importance since the handkerchief was smelling kerosene oil. It was concealed at a place which was not normally or ordinarily used for keeping the kerchief. Accused No. 1 has not offered any explanation as to how the said handkerchief smelling kerosene was found in a drawer of a table. It is, therefore, definite that handkerchief, Article 1 was used at the time of pouring kerosene oil on Sangita.

20. Latching of doors opening to the compound was a game played very conveniently by the accused persons. Even otherwise as per spot panchanama this position was scrupulously maintained till arrival of P.W. 9 Mundhe, P.S.I. at about 10 a.m. Ex. 82 was sent at 3.45 a.m. wherein death was reported to be at 2.15 a.m. It means, none of the accused made any attempt to reach the spot even though they noticed the death of Sangita. They merely allowed the body to be burnt. In the normal circumstance, it would have been the endeavour of an innocent persons to break open the doors and extinguish the fire when the inmate, near and dear or kith and kin is in the flames. If death is instantaneous, as tried to urge, making any attempt to save would have completely been futile, has hardly any justification in a normal conduct of a person. Not making any such attempt does not stand to any test of any standard of human behaviour. This conduct of accused persons tells that burning of Sangita at the spot was according to their well cherished evil design.

21. The Accused No. 1 at the relevant time had not thought it expedient to physically verify the incident. He transmitted the information vide Ex. 82 as regards the incident of death. Accused No. 1 in this document Ex. 82 has quoted exact time of death. It means, accused persons were mentally alert and conscious in respect of the happening in the house and the burning of deceased was well within their knowledge.

22. P.W. 2 Bahadursingh (Gurkha) who was on patrolling duty has deposed that at about 3 a.m. on the date of incident, he saw accused No. 1 with 3 sons which also includes accused No. 2 and one Gokulseth standing on road in front of their house. Looking to these persons at odd hour standing on road it was quite obvious and natural for this witness to ask them curiously as to why they were standing there. On so questioning, accused No. 1 said to him that “there was nothing special and that he should go away from there and that he would tell him in the morning.” This statement of the witness in his substantive testimony does not suffer from any omission or contradiction and, therefore, can safely be accepted. It is apparent that accused persons namely accused Nos. 1 and 2 refused to disclose to this witness about the happening that took place inside the house.

23. Mr. Daga, learned Counsel appearing for Accused Nos. 1 and 2 made a submission that it was not obligatory for the accused persons to tell everything to a person on street. Omitting to disclose, in the submission of the learned Counsel, does not reflect on guilty mind of accused Nos. 1 and 2.

This submission is totally untenable. P.W. 2 in that manner was not a stranger to the accused persons. He was privately engaged as a night watchman by the resident of locality including the accused. P.W. 2 also used to receive remuneration from the accused. In carrying his duty it is quite obvious for him to make an enquiry of any untoward incident. To disclose to this witness about the incident would have been quite natural. However, accused persons since suffered from a guilty mind refused.

Moreover, to question No. 7 under section 313 of the Code of Criminal Procedure Accused No. 1 has not offered such explanation which is urged by the learned Counsel. On the contrary, he answered that it is false. It is thus definite that accused Nos. 1 and 2 had a mind to conceal. Such conduct obviously could be of the persons who have involved in the crime.

24. As per spot panchanama and the testimony of witnesses it is apparent that the place of incident where the dead-body was noticed even otherwise had no access to the outsider. Accused persons with two sons of accused No. 1 were the only inmates of the house. Homicidal death coupled with burning resulting in 100% injuries to Sangita occurred while she was in their custody. The incident with its gravity and extent cannot in any manner go unnoticed. As such not only it was obligatory but they were duty-bound to offer plausible explanation. However, the accused persons consistently and calculately refused to offer any explanation or made an endeavour to clarify any circumstance leading to homicidal death of Sangita. This incriminates them into the crime. We rely on a decision in case of Ganeshilal v. State of Maharashtra, . Their action is concerted, will thought out, well planned and they shared common intention to carry out the execution for the motive which we have discussed earlier.

25. Mr. M.M. Agrawal, learned Counsel appearing for accused Nos. 3 and 4 made a submission that there is nothing on record to implicate accused No. 3 Smt. Sushila and Accused No. 4 Ku. Mohani. According to the learned Counsel, they might have some grievance against deceased Sangita. There could be ill-treatment at their instance to her. As such, at the most they can be held guilty for the offence punishable under section 498-A of the I.P.C. However, there is no overt act of accused No. 3 and 4 in relation to the incident. Mere suspicion even if strong cannot implicate them to homicidal death of Sangita. As such in the submission of the learned Counsel they cannot be held responsible for the offence punishable under section 302 with the aid of section 34 of the Indian Penal Code. We gave our anxious consideration to this aspect.

26. Accused Nos. 3 and 4, as discussed earlier, had a reference in Ex. 62 which is a last word of Sangita. It is revealed therefrom that Accused Nos. 3 and 4 were actively engaged in teasing, abusing accusing and humiliating Sangita. They were also actively engaged in insinuating about her character. They had a strong hatred against Sangita. Elimination of Sangita was in conformity with their evil design.

Accused Nos. 3 and 4 did not claim their absence in the house at the time of incident. Accused No. 3 Sushila as per the spot panchanama was sleeping in a room with accused No. 1 Prabhudayal. It is apparent that accused No. 1 and 2 took a lead in execution of crime. Accused No. 3 Sushila could not reasonably claim to be innocent as regards the happening in the house. Accused No. 4 Mohani used to sleep at a place near the kitchen. This was abutting to the compound and the things were visible from the grill. There was a massive burning with an abundant measure of kerosene. This could not go completely unnoticed. If they were innocent and see the incident, they naturally would have shouted. Even this normal gesture is not to their credit.

Both these ladies namely accused Nos. 3 and 4 have, though under obligation, not offered any explanation or clarified any circumstance leading to homicidal death of Sangita. We do not find any probable hypothesis nor it is suggested at the bar, which could probablise their innocence. Even if it is presumed that they were fast asleep that night, they reasonably and fairly cannot pretend to be innocent having regard to the nature of incident. Their claiming so, according to us definitely indicate their participation in the incident along with accused Nos. 1 and 2, as joint venture by sharing common intention.

27. In conclusion we hold that all the respondents/accused persons are responsible for the homicidal death of Sangita and they brought an end to her life by sharing common intention. They are, therefore, guilty for the offence punishable under section 302 read with section 34 of the Indian Penal Code.

Accused No. 1 gave a report vide Ex. 82 reporting the death due to burning. He tried to mislead by pretending to be an accidental death. Their act of latching the doors, pouring kerosene oil and burning Sangita after assault constitutes an offence punishable under section 201 of the I.P.C. According to us, they did this to help each other and caused disappearance of the evidence or created a false evidence so as to lead to an erroneous conclusion. We also hold them guilty for the offence punishable under section 201 read with section 34 of the Indian Penal Code.

From the evidence as discussed of P.W. 8 Madanlal read with Ex. 62 we also hold all the accused persons guilty for the offence punishable under section 49-A read with section 34 of the Indian Penal Code. We have heard Counsel on the question of sentence. According to them, accused No. 2 got remarried, accused No. 4 has also married after acquittal and accused Nos. 1 and 3 are the old persons. A lenient view was, therefore, prayed.

After hearing the parties we pass the following order :

O R D E R

Appeal is allowed.

We hold all the respondents/accused persons guilty for the offence punishable under section 302 read with section 34 of the Indian Penal Code and we direct :

Accused No. 1 Prabhudayal to suffer R.I. for a period of life and shall pay a fine of Rs. 25,000/-. In case of default he shall suffer additional sentence of R.I. for 2 years.

Accused No. 2 Rajkumar to suffer R.I. for a period of life and shall pay a fine of Rs. 25,000/-, in default to suffer additional sentence of R.I. for 2 years.

Respondent/accused No. 3 Smt. Sushilabai to suffer R.I. for life and shall pay a fine of Rs. 10,000/-, in default to suffer R.I. for 6 months.

Respondent/accused No. 4 Ku. Mohani to suffer R.I. for a period of life and to pay a fine of Rs. 5,000/-, in default to suffer additional sentence of R.I. for 3 months.

We also hold the respondents/accused guilty for the offence punishable under section 201 read with section 34 of the Indian Penal Code. We direct them to suffer R.I. for a period of 3 years and each of them shall pay a fine of Rs. 1,000/-. In case of default they shall suffer additional sentence of R.I. for a period of one month. We also hold respondents/accused guilty for the offence punishable under section 49-A read with section 34 of the Indian Penal Code. We direct them to suffer R.I. for a period of one year and shall pay a fine of Rs. 2,000/- each. In case of default they shall suffer additional sentence of R.I. for a period of 6 months.

Substantive sentence shall run concurrently.

All the respondents/accused persons shall surrender to their bail-bonds within a period of two months.


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