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Judgment
B.N. Shukla, J.—This appeal is a sad commentary of our society. Ages ago, Manu, the first law giver, said1,
Where women are honoured, there the gods are pleased; but where they are not honoured, no sacred rite yields rewards. The Laws of Manu by G. Buhler page 85
Often, we still ignore it. This appeal is an example of the same.
THE FACTS
Ram Nath, father of the Appellant, gave an information to the police station Baheriya, district Allahabad. It is recorded in the general diary (GD) report no. 15 at 9:30am dated 11.9.2006. The report states that:
Urmila Devi, daughterinlaw of Ram Nath (deceased Urmila) and his grand daughter Soni (deceased Soni) had gone to ease themselves in the morning but did not come back;
Their dead bodies were seen floating in the pond;
It appears that while cleaning themselves, they fell down in the pond and died.
On the basis of the report Shiv Kesh Kumar Yadav, Subinspector (PW7) was sent on the spot. He also prepared the inquest. The dead bodies of the deceased were sent for post mortem. They were kept in the mortuary.
At the time of the post mortem, the doctor objected to conducting the post mortem as there was no inquest by the Magistrate. Tileshwar Prasad, Naib Tehsildar (PW5), conducted the inquest again. Thereafter, the post mortem was conducted on 13.9.2006.
Kamla Devi (PW1) (the Informant) is mother of deceased Urmila. She lodged an FIR about this incident on 14.9.2006 at 10:30am (case crime no. 42 of 2006, under section 498A, 304B, 302, 201 IPC, and under section 3/4 of Dowry Prohibition Act, Police Station Bahriya, District Allahabad). The allegation in this FIR are as follows:
Informant''s husband is working in a private firm in Bombay. Deceased Urmila was married to the Appellant in the year 2000. A daughter was also born to them.
The Informant had given sufficient dowry, yet the bridegroom side was not satisfied and were insisting for a golden chain and motor cycle in the dowry;
Deceased Urmila had come to the parent''s house. She informed that her husband, fatherinlaw, sisterinlaw, and motherinlaw are torturing her. Later, on intervention of relatives, an assurance was given that such incident would not happen again;
Deceased Urmila had come over for the festival of Rakstha Bandhan. She informed that she was still being tortured for the dowry;
The Appellant, Ram Nath (fatherinlaw), Bachana Devi (sisterinlaw), Kallu (husband of the sisterinlaw) have killed Deceased Urmila and her daughter Soni. Thereafter threw their dead bodies in the pond.
The dead bodies of the Deceased were taken out from the pond and after post mortem they have been cremated. Appropriate action be taken.
The police investigated the case and filed charge sheet. The case was committed to the sessions court and was registered as ST No. 393 of 2007.
The Additional Session Judge, Court No. 5, Allahabad (the ASJ) framed the charge on 3.8.2007. The Appellant, Ram Nath (fatherinlaw) Amrawati Devi (motherinlaw), Bachana Devi (Sisterinlaw) and Doodh Nath (husband of sisterinlaw) were charged under section 3/4 of Dowry Prohibition Act, section 498A, 304B IPC (for committing murder of Deceased Urmila Devi), Section 302 read with section 149 (for committing murder of Deceased Soni), and section 201 read with section 149 IPC.
The ASJ by his judgement dated 28.2.2009 passed the following order:
Ram Nath, Doodh Nath alias Kalloo, Amrawati Devi, and Bachana Devi were acquitted of the charges levelled against them;
Ram Samujh was acquitted under section 498A, 304B IPC, section 3/4 of Dowry Prohibition Act; however,
Ram Samujh (the Appellant) was convicted under section 302 and 201 IPC for murdering deceased Urmila and deceased Soni.
The ASJ by his order dated 2.3.2009 awarded the following sentence to the Appellant:
Death sentence and fine of Rs.5000/ (with default stipulation of six month simple imprisonment) under section 302 IPC;
Seven years rigorous imprisonment and fine of Rs.2000/ (with default stipulation of two months simple imprisonment) under section 201 IPC.
The ASJ sent reference no. 4 of 2009 for confirmation of death sentence. The Appellant also filed Criminal Appeal No. 1738 of 2009. Both were taken together and a division bench of this court remanded it on 4.8.2009, on the ground that charge was wrongly framed and directed fresh trial from that stage.
The ASJ again framed the charge on 5.9.2009. This time only the Appellant was charged. He was charged under section 302 and 201 IPC. The prosecution again examined witnesses.
Among others, the prosecution filed the following documents:
FIR dated 14.9.2006 (Ex Ka5);
Written report dated 14.9.2006 (Ex Ka1);
Post mortem of Urmila Devi dated 13.9.2006 (Ex Ka2);
Post mortem of Soni dated 13.9.2006 (Ex Ka3);
Site Plan with the Index (Ex ka18).
The prosecution examined the following witnesses:
Kamla Devi (PW1): Informant, mother of the deceased Urmila;
Brij Lal Yadav (PW2): Father of the deceased Urmila;
Dr. Om Srivastava (PW3): Doctor, conducted the post mortem of deceased Urmila;
Dr. Bhupendra Nath Srivastava (PW4): Doctor, conducted post mortem of deceased Soni;
Tileshwar Prasad (PW5): Naib Tehsildar, conducted inquest for the second time;
Ram Sahai (PW6): Constable clerk, prepared the Chik;
Shiv Kesh Kumar Yadav (PW7): Subinspector, conducted the inquest for the first time;
Indra Narayan Shukla (PW8): Constable, carried the dead body for post mortem;
Punna Lal (PW9): Investigating Officer (the IO).
The accused was examined under section 313 CrPC on 26.10.2009. He denied his involvement in the incident. He stated that:
He had no knowledge about the murder;
He was irrigating paddy fields in the night of the incident.
The defence did not examine any witness but amongst others filed GD report no. 15 dated 11.9.2006 (Ex Kha1).
The ASJ by his judgement dated 17.12.2009 convicted the Appellant and awarded the following sentence to him on 18.12.2009:
Death penalty and fine of Rs.5000/ (with default stipulation of six months simple imprisonment) under section 302 IPC;
Seven years rigorous imprisonment and fine of Rs.2000/ (with default stipulation of two months simple imprisonment) under section 201 IPC.
The ASJ sent reference no. 2 of 2010 to this court. The Appellant also filed Criminal Appeal No. 75 of 2010 against his conviction and sentence.
POINTS FOR DETERMINATION
We have hears Sri Akhilesh Singh, and Sri Raj Bahadur yadav, counsel for the Appellant; Sri DR Chaudhary, Government Advocate, Sri Arunendra Kumar Singh, and Sri Anand Tiwari, AGA for the State. The following points arise for determination in the case.
(i)Whether the Appellant has been charged twice so as to render the charge illegal;
(ii)Whether the Appellant is guilty;
(iii)In case the Appellant is guilty then, what punishment should be awarded to him.
1st POINT: CHARGE NOT ILLEGAL
The counsel for the Appellant submitted that charge is illegal as,
The charge relating to Soni has been framed twice;
A judgement can be set aside but not the charge;
The charge was first framed under section 302 IPC on 3.8.2007 and the second time under the same section on 5.9.2009.
The earlier charge dated 3.8.2007 relating to murder of deceased Urmila was under section 304B IPC, however the Appellant was convicted under section 302 IPC. This was held to be illegal by this Court. The Appeal was allowed and remanded. The final order is as follows:
''In view of the above discussion the appeal is allowed and the judgement and order impugned herein are set aside. The matter is remanded to the trial court to frame charges afresh and commence trial of the case afresh from the stage of framing of charge. The exercise aforesaid, it is directed, shall be taken to completion within a period not exceeding four months.''
The effect of this order is that the earlier charge was washed away and the trial court was directed to frame fresh charge. The charge dated 3.8.2007 was not in existence. The only charge that was is in existence is the charge dated 5.9.2009. As there is only one charge, there is no illegality.
In any case, section 216 CrPC empowers the court to alter or add to any charge at any time before the judgement is pronounced. The fresh charge is altered charge after remand. It was the only charge on which the Appellant was tried. There is no question of double charge regarding deceased Soni.
2nd POINT: APPELLANT IS GUILTY
In this case, there is no direct evidence of murder. It is based on circumstantial evidence. The law?when a case can be said to be proved against an accused on circumstantial evidence?has been established in different decisions2. It is as follows:
(i) The circumstances from which the conclusion of guilt is to be drawn should or must be established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv)They should exclude every possible hypothesis except the one to be proved, and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been perpetrated by the accused.
The counsel for the State submitted that the following circumstances conclusively prove that the Appellant is guilty:
(i)The deceased did not commit suicide but were killed;
(ii)They were killed in the night and not in the morning;
(iii)The intention was to kill and not to commit any other crime namely dacoity, looting, or rape;
(iv)The deceased as well as the Appellant were in the house in the night;
(v)There is no satisfactory explanation as to what had happened in the night. It was within the knowledge of the Appellant: the burden was on him to explain it.
(i) Deceased Were Killed
The ante mortem injury of deceased Urmila and opinion of the doctor mentioned in her post mortem report (Ext Ka2) is as follows:
Ligature marks all over neck present 33cm x 1 cm (congested).
Cause of death due to Asphyxia as a result of antemortem strangulation.
Dr. Om Srivastava (PW3) conducted the post mortem of deceased Urmila. He deposed that,
The head of the deceased Urmila was in good condition. No bone was fractured;
Hyoid bone in the neck was fractured;
In his opinion, Deceased Urmila died because of asphyxia due to strangulation.
The ante mortem injury of deceased Soni and opinion of the doctor mentioned in her post mortem report (Ex Ka3) is as follows:
A complete ligature marks, size 22 cm x 1 cm at level of cricoid cartilage on cleaning dissection of ligature mark haemorrhage present Hyoid bone fractured, blood clots present;
Death due to Asphyxia as a result of ante mortem strangulation.
Dr. Bhupendra Nath Srivastava (PW4) conducted the post mortem of deceased Soni. He deposed that,
Both eyes were closed, the mouth was half opened, and tongue was protruding out side;
Hyoid bone was fractured;
In his opinion, the deceased died because of Asphyxia due to strangulation.
The counsel for the Appellant submitted that:
The dead bodies were in water and injuries were disfigured;
The injuries could be manufactured afterwards.
The dead body decomposes slower in water than in air. Medical Jurisprudence and Toxicology by John Glaister (9th edition page 139) states:
''It may be accepted as a general principle that a body decomposes in air twice as quickly as in water, and eight times as rapidly as in earth. Putrefaction develops rapidly in bodies lying in sewagepolluted water.
Bodies retrieved from water after lengthy immersion very frequently show advanced putrefactive changes involving the face, neck and chest. This is possibly due to exposure of these parts to the air after flotation.''
The deceased were alive on the previous evening. The dead bodies could have been thrown in the water, earliest in the night though according to defence, the deceased were alive in the morning (see Ex Kha1). Irrespective of time of throwing the dead bodies in the pond, the water cannot effect the dead bodies so as to fracture any bone.
Constable Indra Narayan Shukla (PW8) carried the dead body for the post mortem. He deposed that:
He did not permit anyone to touch the dead body till they were kept in the mortuary;
The post mortem was conducted on 13.9.2006 as there were many dead bodies for post mortem.
In our opinion, neither the dead body were disfigured due to water nor any injury was manufactured afterwards. In any case, if this was so then the injuries would have been post mortem injuries. There is also no suggestion to the doctor in this regard.
There is neither anything on record nor any medical opinion has been brought to our notice to contradict the opinion of the doctors (PW3 and PW4). There is no reason to take a view, contrary to the one given by doctors that Deceased were strangulated.
In our opinion, the Deceased died because of strangulation and not because of drowning.
(ii) Incident Happened in the Night.
Ram Sahai is constable clerk. He was examined as PW6. He prepared the Chik and also proved the GD report no. 15 (Ex Kha1). GD report 15 was given by Ram Nath, the father of the Appellant, in the police station regarding the incident. In this report it is also mentioned that subinspector was deputed for conducting the inquest.
The aforesaid report was not only proved but was also admitted by the Appellant in his statement under section 313 CrPC. The father of the Appellant could only know about the dead bodies from the fact that they were floating in the pond.
Shiv Kesh Kumar Yadav (PW7) conducted the inquest. He deposed that he saw the dead bodies floating in the pond. He got the dead body taken out from the pond with the help of the villagers.
Kamla Devi (PW1), mother of the Deceased Urmila, also reached the spot. She deposed that by the time she reached the spot the dead body of deceased Soni was taken out and the dead body of deceased Urmila was being taken out in front of her.
Modi''s Medical Jurisprudence and Toxicology {(23rd edition) Chapter 18 page 611} explains as to why a body floats in the water. The explanation is as follows:
''Normally the human body is slightly heavier than fresh water and immediately, the person becomes unconscious, sinks and goes down to the bottom, unless there is some obstruction in between or there is a strong upward current in the water. Owing to putrefaction and formation of gases, all bodies sooner or later again come up to the surface. It is much quicker in warm water than in cold water. Usually, the sunken body comes to the surface a little distance away from the site of drowning, however, the current, its speed and the tide in seawater are some of the factors.''
It takes hours before gases start forming in the body and it floats.
The distance of place of pond and the police station is about 10 km. The information was given at the police station at 9:30am in the morning. The dead body were floating when Ram Nath saw them in the pond. The dead body must be thrown in the pond some where in the night. It is only then they would be floating in the morning.
In our opinion, the Deceased were killed in the night and in the night itself their dead bodies were thrown in the pond.
(iii) Intention Was to Kill
There is no evidence of looting or dacoity in the house. Only one suggestion given to Brij Lal Yadav (father of deceased Urmila PW2) that in the night some assailants had come, committed rape on the deceased Urmila, and killed her. Had it been so then father of the Appellant would have reported about this incident in his report (Ex Kha1). He would not have reported that the deceased died as she might have fallen in the pond.
During arguments, the counsel for the Appellant suggested that:
The Deceased had gone to ease herself in the morning;
There she might have been raped and killed thereafter.
There is no evidence in the dead body of Urmila indicating that she was raped. There was no such suggestion to the doctor who might have answered it.
While discussing the proceeding subheading, we have held that the deceased was killed in the night. There is no question of the deceased going out to ease herself in the morning. In case she never went out then there is no question of being raped and then killed.
The site plan is Ext Ka8. It shows that the pond where the dead bodies were found floating is at the back of their house. The site plan indicates that this pond is 10 paces from their house.
In case deceased Urmila was also killed when she had gone to ease herself then why would anyone carry her and deceased Soni to the house and thrown both the dead bodies in the pond. The dead bodies would have been left there itself.
In our opinion, the intention was to kill the Deceased. They were not killed in dacoity or looting. Deceased Urmila was also not raped before she was killed.
(iv) Appellant was in the House in the Night
The deceased were in the house in the night. There is no dispute about it. So far as the Appellant is concerned, he in his statement under section 313 CrPC stated that:
He had no knowledge about the incident;
He was not present in the night;
He was irrigating paddy fields.
This is merely the statement of the Appellant. There is no evidence to support it. There is no evidence that the Appellant or his family members had any agricultural field in which paddy was grown; or they had any agricultural field. Had they any, then it was easy for them to file Khatauni or Khasra to prove it. Nothing has been brought to our notice to prove that the Appellant or his family members had any agricultural field.
The other family members were there. They were accused on the earlier occasion but not after the remand. They or anyone else could have been examined to show that the Appellant was at the fields. In absence of any evidence, the normal presumption is that the Appellant was in the house.
In our opinion, this circumstance is also proved. The Appellant was in the house along with the deceased.
(v) No Satisfactory Explanation
The relation between husband and wife were not cordial. The Informant (PW1) and Brij Lal Yadav (PW2) have deposed that husband and inlaws of deceased Urmila had demanded more dowry; they were not happy with the dowry given. There was motive.
The counsel for the Appellant submitted:
The burden to prove its case beyond reasonable doubt is on the prosecution;
It never shifts on the accused;
Section 106 of the Evidence Act does not cast any burden on the accused to prove that no crime was committed by him.
Manu had said,
English translation As a hunter traces the lair of a (wounded) deer by the drops of blood, even so the king shall discover on which side the right lies, by inferences (from the facts).'' (The Laws of Manu translated by G. Buhler, Chapter VIII, Slok 44 page 261).
The criminal jurisprudence in our times is no different. It is settled law that the burden to prove its case beyond reasonable doubt is always on the prosecution. Though, under some penal provisions burden shifts on existence of specific conditions. Even then the existence of those conditions are to be proved beyond reasonable doubt. Section 106 of the Evidence Act is not an exception to this principle.
Neither it is the law nor it is the mandate of Section 106 that the accused having knowledge of any fact has got to explain the circumstances and in the absence of the explanation, the inference of his guilt can be raised.3 The law is,
When the proved circumstances exclude every possible hypothesis except the one to be proved by the prosecution; and
The chain of evidence is complete without leaving any reasonable ground for the conclusion consistent with the innocence of the accused; and
The evidence shows that in all human probability the act must have been perpetrated by the accused,
Then the accused has to satisfactorily explain the facts exclusively within his knowledge; the burden is upon him under section 106 Evidence Act.
The Supreme Court in Deonandan Mishra vs. The State of Bihar: AIR 1955 SC 801 has put it in the following words,
''Where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.''
The first four circumstances (see paragraph 23 of the judgement) have been proved. They not only exclude any other hypothesis except the guilt of the accused but also rule out any reasonable likelihood of the innocence of the Appellant. It was for him to explain as to what had happened in the fateful night; it was in his special knowledge; the burden was upon him.
The Appellant offered an explanation. It was found to be incorrect. He has failed to explain it. The presumption under section 106 of the Evidence Act can be drawn against him. All circumstances are proved. There is no satisfactory answer as to what happened in the fateful night. This is an additional link that completes the chain.
In our opinion, the prosecution has proved beyond reasonable doubt that the deceased were killed by strangulation and then their dead bodies were thrown in the pond in the night. The dead bodies were thrown in the pond to make the evidence disappear.
In our opinion, the prosecution has proved its case under section 302 and 201 IPC beyond reasonable doubts.
3rd POINT: NOT A CASE OF DEATH PENALTY
This case is based on circumstantial evidence. The age of the Appellant in statement under section 313 CrPC was 26 years. He is a young man. The responsibility in this case is not only of the Appellant but some responsibility has to be attributed to his family members too. They should have been careful and prevented it from happening. It happened as there was no proper guidance from the parents.
Undoubtedly, the Appellant killed his wife and daughter and it is a heinous crime. However, considering the entire circumstances, it would not be proper to award death penalty to the Appellant.
CONCLUSIONS
Our conclusions are as follows:
(i)There is only one charge for the murder of Soni. There is no illegality;
(ii)The deceased were killed in the night by strangulation. They did not die because of drowning;
(iii)The prosecution has proved its case beyond reasonable doubt against the Appellant. He is guilty under section 302 and 201 IPC. He is sentenced to,
Imprisonment for life under section 302 IPC;
Seven years rigorous imprisonment under section 201 IPC.
Both the sentences will run concurrently.
In view of our conclusions, the reference is not accepted. The conviction in ST No. 393 of 2007 passed by ASJ on 17.12.2009 is upheld but the sentence is altered as mentioned above.