Suresh Kumar and Others vs State of C.G.

Dhirendra Mishra, J.—This criminal appeal is directed against the judgment of conviction and order of sentence dated 22.7.2002 passed in S.T. No. 480/00 whereby the learned II Additional Sessions Judge, FTC, Mungeli, District Bilaspur has convicted Appellants No. 1 & 2 under Sections 498A, 302 & 201 of the I.P.C. and Appellant No. 3 has been convicted u/s 302/34 & 201 of the I.P.C. and sentenced to undergo RI for 3 years, life imprisonment, RI for seven years, respectively and Appellant No. 3 has been sentenced with life imprisonment and RI for 7 years, respectively.

Appellant Suresh Kumar and deceased Uttarabai were married in the year 1998 and Satyendra Kumar was their son. Appellant Shantibai is mother of Appellant Suresh and Appellant Rakesh.

Case of the prosecution, in brief, is that the deceased resided with the Appellants in her matrimonial home at Village-Kui, whereas her parents resided at Kawardha. Behaviour of the Appellants towards deceased Uttarabai was not proper, she was not liked by Appellant Shantibai as she was not efficient in domestic work. The Appellants also nourished a grudge that they did not give color TV at the time of marriage. The deceased used to narrate her plight to her parents and elder sister Pushpadevi. On the eve of Teeja (September) of the year 2000, she visited her parental home and complained about the behaviour of the Appellants to her parents and sister. She returned with Appellant Suresh after festival. On 18.10.2000 around 13.30 hours Appellant Suresh gave merg intimation of Ex. P/9 mentioning therein that his wife Uttarabai has died by burning. He also gave merg intimation regarding death of his son Satyendra Kumar, aged about 1-1 Viz years, who had sustained serious burn injuries in the same incident and died while they were preparing to take him to hospital for treatment on way.

Police proceeded for the scene of occurrence, performed inquest over the person of deceased in the presence of witnesses vide Ex. P/2 and thereafter, sent her dead body to Primary Health Center, Pandariya for postmortem vide Ex. P/7, where a team of Dr. V.P. Jaiswal (PW-10) and Dr. P.L. Kurre conducted postmortem and gave their report of Ex. P/8. Investigating Officer (PW-9) Rajesh Devdas prepared site plan of both the places where Uttarabai and Satyendra died vide Ex. P/6. Plain soil, kerosene mixed soil, a tin containing kerosene oil and a match box placed near the body of deceased Uttarabai, were taken into possession vide Ex. P/3. Nazri Naksha of the place of incident was got prepared by Halka Patwari vide Ex. P/16(C). On the basis of report lodged on 23.10.2000 by ASI Rajesh Devdas, FIR under Cr. No. 53/00 was registered vide Ex. P/11. A separate Cr. No. 56/00 was registered against the Appellants u/s 302/34 of IPC on the basis of report dated 5.11.2000 lodged by Rajesh Devdas for causing homicidal death of child Satyendra Kumar, and the Appellants were separately tried for the said charge in S.T. No. 481/00. The articles seized during investigation were sent for chemical examination to Forensic Science Laboratory, Raipur vide Ex. P/15.

After completing investigation, charge sheet was filed against the accused/Appellants in the Court of Judicial Magistrate First Class, Mungeli, who in turn committed the case to the Court of Sessions Judge, Bilaspur and the same was received on transfer for trial by the learned Additional Sessions Judge.

Learned trial Court framed charges u/s 498A or in the alternative 498A/34, Section 302 or in the alternative 302/34 and 201 or in the alternative 201/34 of the IPC against all the accused persons, who abjured their guilt. The prosecution in order to establish charges against the accused/Appellants examined 11 witnesses in all. Thereafter, statements of accused/Appellants were recorded, in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. Appellant Suresh also contended that at the time of incident, he was not present at home, and Rakesh stated that he had gone to Panchayat Bhavan to attend his duties as daily wager Watchman, whereas Appellant Shantibai stated that she had gone to river to take bath. The Appellants also examined Laxmi Thakur and Krishna Kumar in their defence as DW-1 and DW-2 respectively.

Learned trial Court after hearing counsel for the respective parties, convicted & sentenced the Appellants as mentioned in para-1 of this judgment.

The trial Court after setting issues for consideration in para-7 of its judgment, relying upon the evidence of Dr. V.P. Jaiswal, who conducted postmortem on the person of deceased Uttarabai and proved his report of Ex. P/8, has held that the deceased died homicidal death. Rejecting the defence of the Appellants that they were not present at the time of incident at home and relying upon the evidence of PW-1 Pushpadevi-sister, PW-2 Udanlal Dinkar-father, PW-3 Sarswati Bai-mother of the deceased, PW-4 Mohanlal and PW-5 Kaveribai, neighboured of the Appellants, held that Appellants No. 1 & 2 were responsible for physical and mental cruelty towards the deceased. However, Appellant No. 3 has been acquitted of the charge u/s 498A of IPC. It has been further held that though no direct evidence is available in this case, however, since in the residential house of the accused persons, deceased Uttarabai was murdered by throttling and the Appellants have not offered any explanation as to under what circumstances she was murdered, in such situation, relying upon circumstantial evidence available on record, a presumption has been drawn u/s 114G of the IPC and it has been held that the Appellants jointly in furtherance of their common intention committed murder of Uttarabai by throttling.

Defence of the accused persons that the deceased was suffering from epilepsy, in the past also she had suffered attack of epilepsy and asphyxia could be caused as a result of epileptic attack, has been rejected.

Shri Utkarsh Verma, learned Counsel appearing for the Appellants, argued that domestic dispute in the family is common. Allegation against Appellant Shantibai is that she did not approve the domestic work performed by Uttarabai and for this reason, she used to get annoyed and a situation of quarrel used to crop up. Father of the deceased Udanlal Dinkar has also alleged that Shantibai had asked them through Uttarabai to arrange for color T.V. as at the time of marriage, they had given Black & While T.V. However, the above allegation is made for the first time before the Court and Sarswatibai i.e. mother or Pushpa-sister of the deceased, has not made any such allegation. The Appellants have a dispute with their neighbour Mohanlal and they were not in talking terms for the last 5-6 years and because of the above animosity this witness has deposed against them, deliberately suppressing their strained relationship, which has been admitted by his wife Kaveribai (PW-5). Version of Mohanlal further stands falsified from the evidence of P W-7 Shantibai. There is evidence available on record that the deceased was suffering from epilepsy, and her father has admitted this fact in his deposition. There is evidence that Uttarabai had suffered epileptic attack in the past also. In these circumstances, the possibility of deceased undergoing epileptic fit and dying as a result of suffocation and in the process catching fire, cannot be out rightly ruled out.

Referring to Modi''s Medical Jurisprudence and Toxicology, it was argued that suffocation by obstruction of the air passage from within is also possible during a fit of epilepsy. The necessary symptoms normally found in the cases of deaths due to strangulation or throttling are not present in this case. The doctor has admitted in his cross-examination that the deceased suffered burn injuries to the extent of 98% and in these circumstances, contusions described in the postmortem report could not be observed. Finding of the trial Court is based on conjectures and surmises and the same is without any evidence available on record.

On the other hand, learned Counsel for the State supporting the impugned judgment of the trial Court, argued that the deceased died homicidal death in her matrimonial house, there is evidence available on record that after committing murder, her dead body was set on fire in order to destroy the evidence and misleading information was given to the police that the deceased died due to burning, which stands falsified from the postmortem report. In these circumstances, in view of Section 106 of the Evidence Act, there will be corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution.

Reliance is placed on the judgments in the matters of Trimukh Maroti Kirkan v. State of Maharashtra AIR 2006 SCW 5300 and Swamy Sharaddananda @ Murali Manohar Mishra Vs. State of Karnataka, .

We have heard learned Counsel for the parties. We have also perused the record of the trial Court as also the impugned judgment.

Evidence of PW-1 Pushpadevi-sister, PW-2 Udanlal Dinkar-father, P W-3 Sarswati Bai-mother of the deceased, is to the effect that Uttarabai was married with Appellant Suresh Kumar on 5th May, 1998 and she gave birth to Satyendra Kumar through Appellant Suresh. Uttarabai used to inform them that Appellant Shantibai was unsatisfied with the quality of her domestic work and therefore, she used to quarrel with her and in the above quarrels, Appellant Suresh used to support his mother and because of the above quarrels, atmosphere of the house was tense.

Udanlal Dinkar has also deposed that Shantibai used to ask Suresh that parents of Uttarabai should immediately arrange color TV., however, the above fact is missing in his diary Statement of Ex.D/1. They had brought Uttarabai to their home in the last Teeja festival. After festival, Suresh came and took her. At that time also, she had narrated that her difference with mother-in-law is still continuing. After receiving telephone of Station House Officer, Kui, he went to Kui with his wife in the night itself. He was informed by the villagers that Satyendra was being taken to hospital in semi-burnt condition by motorcycle for treatment. However, he died on way. In the cross-examination, he has stated that his statement was recorded on 19th and no statement was recorded on 12.11.2000. In para-11 of his deposition, he has admitted that Uttarabai was suffering from disease of becoming unconscious. He had got her treated also, however, her ailment used to recur within 4-6 months.

Sarswatibai, mother of the deceased, has also stated that Uttarabai used to inform her that her mother-in-law Shantibai complains that she does not know cleaning and cooking, her work is not liked by Shantibai. She did not pay much attention to the above complaint, as such domestic quarrel is common. At the time of Teeja, she had narrated the above facts to her. Apart from the above complaint, Uttarabai did not tell her anything. She has specifically stated that she does not know anything about Appellant No. 3, brother-in-law of Uttarabai. She did not state anything against Appellant No. 3.

PW-4 Mohanlal resides in a house adjacent to the house of the Appellants. There is a passage of 2-4 feet between their houses. This witness has deposed that Suresh and Shantibai used to beat Uttarabai. He had heard the shouts of beating from his house. However, he did not see the actual marpeet. One Shantibai Baretin had gone to the house of Appellants a day before the death of Uttarabai. At that time Suresh was beating Uttarabai, she tried to mediate, he overheard their shouts. Shantibai was saying, "don''t beat, leave her". However, he never intervened in their affairs. On the day of incident, he had gone to Pandariya and on return, he learnt that Uttarabai has been set on fire and murdered. He has denied the suggestion of the defence that there is any dispute between them. He has further denied that they are not in talking terms since last 5-6 years. He has stated that they have cordial relationship with the accused persons. He had stated before the police that Shantibai went to the house of Appellants a day before the incident and had stopped them from beating. He cannot say as to why this fact is not mentioned in his diary statement of Ex.D/2.

PW-5 Kaveribai, wife of Mohanlal, has also deposed that the accused persons used to quarrel with Uttarabai, which they overheard from their house. In the cross-examination she has admitted that they are not in talking terms with the accused persons and they have stopped going to each other''s house even before the death of Uttarabai. There was some dispute between the two families in connection with repairs of roof.

PW-6 Narendra Singh is a witness of inquest of Ex. P/2. He has also deposed that on the date of incident, on hearing about the incident, he went to the house of Suresh. He saw that Uttarabai was lying inside the room in burnt condition, her 1-1� year child was taken out in burnt condition, he died on way while being taken to Pandariya hospital and he was brought back to Suresh''s house. The clothes lying nearby on the floor were also burnt. However, the clothes which were hanging on rope were not burnt. Inquest was prepared in their presence and he has signed the inquest report. In the cross-examination, he has admitted that he never heard or saw the Appellants quarreling or arguing with the deceased. Accused persons and Uttarabai were residing happily and peacefully. Uttarabai was suffering from epilepsy, as was told by Suresh Kumar, he had given ten to twenty rupees to Suresh for purchasing medicine for Uttarabai. At the time of incident, Suresh had gone to his tea shop in Kui market, Appellant Rakesh was discharging his duties as Watchman of Gram Panchayat. Gram Panchayat is at a distance of 2 furlong whereas shop of Suresh is at a distance of 100 meters. When they reached the house of accused persons, Shantibai told them that she has just returned from river after taking her bath. Rakesh resides in Gram Panchayat Bhavan and sleeps there. There is a dispute between PW-4 Mohanlal and the accused persons since 5-6 years and they are not in talking terms and they did not visit each other''s house. The clothes on the rope were not burnt as they were at a distance.

Shantibai (PW-7) has not stated anything against the accused persons and she has been declared hostile. In the cross-examination by the prosecution also, she has not deposed anything against them.

PW-8 Jagmohan Gupta has deposed that he recognizes the accused persons. He had also seen the wife of Suresh, who is dead. He used to keep his goods in the house of accused persons. He met wife of Suresh around 9-9.30, he told her that he is taking his goods, at that time accused persons were not present. Around 10.30 when he was in his shop, he heard about the fire and thereafter, heard that wife of Suresh has committed suicide by setting herself on fire. He did not see deceased quarreling with any person on that day. He has been cross-examined by the prosecution, however, he has denied having made any statement as mentioned in the marked portion of Ex. P/5.

PW-9 Ramprasad has deposed that he heard that Uttarabai died due to burning. On hearing about the incident, he went to the house of Suresh around 2.30, he saw that son of Suresh had burn injuries and he was alive. The child was taken to Pandariya on motorcycle, however, he died on way and brought back. He had also seen the dead body of Uttarabai lying on the floor. He was present at the time of inquest being conducted by the police. In the cross-examination, he has admitted that Uttarabai was suffering from epilepsy. One day he saw that Uttarabai had fallen on the ground, whereupon he rushed towards her and found that froth was coming out of her mouth as a result of epileptic attack.

PW-10 Dr. V.P. Jaiswal conducted postmortem over the dead body of Uttarabai and proved his report of Ex. P/8. He has deposed that on both of her legs and hands i.e. upper and lower limb rigor mortis was present, except the front and inner portion of her left hand, rest of her body was burnt and her skin had blackened due to burn, smell of kerosene was emanating from her body. Her eyes were closed, white portion of her eyes was reddish, her tongue was inside her mouth and in the nostrils blood was present. Upper left incise teeth and lower central incisor of both side teeth are moving in their socket, little vesicles were present on the body, the line of redness between burnt portion and unburnt portion of skin was absent. Absence of line of redness is suggestive of postmortem injuries. Contusion is of size 3 cm x 4 cm on right axilla, circular contusion of 3 cm around external genital orifice. On dissection of vesication, base was found pale coloured. After cutting of skin over neck, in thyroid region, an ecchymosed tissue was found and neck muscles over thyroid region seen. Contusion of axilla & vaginal region showing ecchymosed blood, after dissection trachea was found highly congested below thyroid region, right chamber of the heart was full of blood, whereas in the left chamber, little amount of blood was present. On dissection of sternum region, below neck clotted blood was found. Contusion found in the thyroid region of neck, and right axilla and genital organs'' injuries were antimortem. Highly congested trachea and blood in trachea with ecchymosed tissue was found. All these lead to impression that pressure has been applied over neck by hard and blunt object. The injury to teeth and contusion over right axilla and vaginal region wound, have been caused by hard and blunt object. The burn seen over body is postmortem in nature caused by flame. Time of death was 18-24 hours from the time of postmortem.

The doctor has further opined that mode of death of Uttarabai is due to asphyxia caused by strangulation, it is homicidal in nature, and burn seen over, body is postmortem in nature. In the cross-examination, he has admitted that in the fit of epilepsy, froth comes out from mouth and nose, froth may obstruct the passage of air if a person burns. In this condition, it is possible that carbon particles may not be found in the trachea as person can stop his breathing for V2-I minutes and thereafter, he has to breathe and then carbon particles may be found in trachea. If a person dies before further breathing, in that condition, carbon particles would not be found. He has also admitted that at times it is possible that epileptic fits may continue for 10 minutes. The base of vesication caused due to antimortem burn would be reddish. If a lady dies due to throttling, she may sustain injuries over elbow, lower part of leg; tongue and eyes may come out, however, above symptoms are not necessary. Contusion may be caused in lungs due to epilepsy. It is not necessary that there must be bleeding from ear on throttling. He did not find any fracture of any bone of neck or other parts of the body. The extent of burn injury over the person of Uttarabai was 98%, though the same has not been mentioned in the postmortem report. He has denied the suggestion that with this percentage of burn, it was not possible to pinpoint the contusions. This witness has further stated that the inner side of trachea was not found congested. He has denied the suggestion that cause of death of Uttarabai was suicidal.

The trial Court relying upon the evidence of Dr. Jaiswal has arrived at a conclusion that the deceased died as a result of asphyxia due to strangulation by pressing of neck. The doctor after postmortem has opined that the neck of the deceased was pressed by hard and blunt object and cause of death is asphyxia and death was homicidal in nature.

In Modi''s Medical Jurisprudence, 23rd Edition, at page 575 strangulation is defined as the compression of the neck by a force other than hanging. Types of strangulation has been given as (i) ligature strangulation, (ii) throttling (manual strangulation-compressing with hand), (iii) mugging (compressing with forearm or foot or wrist), (iv) Bamdola (wooden stick is used to compress the neck), (v) garroting (a rope or a loincloth and a wooden stick as a lever to tighten the legation is used), and (vi) accidental strangulation (can arise in the course of a person''s occupation when a neck tie or scarf is caught in moving machinery etc.).

If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death.

If the fingers are used for strangulation (throttling), marks of pressure by thumb and the fingertips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on the one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards and one below the other. At times, marks are found clustered together so that they cannot be distinguished separately.

If the throat is pressed by both the hands, bruises and abrasions may be found on the front of the neck as well as on its back. Besides these marks, abrasion and bruises on the mouth, nose, forehead, cheeks, lower jaw or any other part of the body if there has been a struggle. Fractures of ribs and injuries to thoracic and abdominal organs may be present if the assailant kneels on the chest or abdomen of his victim while pressing his throat.

If a stick or a foot is used, there is a bruise in the middle of the front of the neck, generally across the windpipe, corresponding in width to the substance used. There will be a similar mark on the nape of the neck, if two sticks are used. In such a case, several local injury will be evident.

Describing appearance due to asphyxia caused by strangulation, it has been observed that face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.

Internal appearance : There is extravasation of blood into the subcutaneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. Sometimes, there is laceration of the sheath of the carotid, as also their internal coats with effusion of blood into their walls. The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare.

The larynx and trachea are congested, and contains frothy mucus. The cartilages of the larynx or the rings of the trachea may be fractured, when considerable force is used. The hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation, although the larynx and the trachea may, in rare cases, be fractured by a fall. Lungs are usually markedly congested showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. Right side of the heart is full of the dark fluid blood and left empty. The bronchial tubes usually contain frothy, bloodstained mucus.

To arrive at a conclusion that death was due to strangulation, it is necessary, therefore, to note the effects of violence in the underlying tissues in addition to ligature mark or bruise marks caused by the fingers or by the foot, knee and other appearances of death from asphyxia. At the same time, the possibility of other causes of suboxic or asphyxial death should be excluded.

Dealing with deaths from asphyxia, term'' suffocation'' has been defined as that form of death that results from the exclusion of air from the lungs, by means other than that of the compression of the neck and it has been observed that choking or obstruction of the air passages from within may occur occasionally during fit of epilepsy.

In the matter of Mulakh Raj, etc. Vs. Satish Kumar and others, , the Hon''ble Supreme Court referring to Taylor''s Principles and Practice of Medical Jurisprudence, observed that asphyxia is a state in which the body lacks oxygen because of some mechanical interference with the process of breathing. Cyanosis indicates the blue colour of the skin, mucous membranes and of internal organs, notably spleen, liver and kidneys.

General features of asphyxia: the head and face may show intense congestion and cyanosis with numerous petechiae. Blood exudes from the mouth and nose. Blood tinged frothy fluid is present in air passages. Mucus may be found at the back of the mouth and throat. The lungs which are of particular interest, usually show in addition to congestion of inter-alveolar capillaries, the presence of the oedema fluid in the alveoli, areas of haemorrhage and collapse with intervening emphysema.

General Internal appearances: internally the air passages contain fine froth, often blood stained. The lungs are congested with subpleural petechiae. Microscopically there is usually intense interalveolar congestion with haemorrhages of varying size, fluid in the alveoli, areas of collapse and intervening areas of ruptured alveoli. The air passages often contain large areas of desquamated respiratory type epithelium, red blood cells and fluid. The remaining organs show only congestive changes.

The mark of the neck is usually of the same width as the constricting object and the depth is about half its diameter.

In manual strangulation the marks of bruising will be on the front or sides of the neck, chiefly about the larynx and about it. Marks of pressure of fingers may, however be slight. The distribution of these marks when present will vary with the circumstances, and factors which will affect it include the relative position of the assailant and the victim, the manner of gripping the neck, being greater if the grip is shifted or has been reapplied if the victim struggles, and the degree of pressure. The solid tissues of the neck are of extreme importance in cases of suspected strangulation. The solid structures comprise the hyoid bone and the cartilages forming the larynx. If the body is found to have died with marks on the neck which indicate manual strangulation and this is subsequently confirmed in the mortuary and laboratory the case must be regarded as a killing by another person. It is inconceivable that anyone could die from compression of the neck by his own hand because loss of consciousness would cause relaxation of the constricting fingers.

From perusal of factual finding on the postmortem report of the deceased and the evidence of Dr. Jaiswal, which we have already reproduced in detail in the foregoing paragraphs, we observe that the same do not correspond by medical jurisprudence on numerous aspects as would be evident from comparison of the findings recorded in the postmortem report and internal & external appearances that may be found in cases of death due to strangulation as a result of external pressure over neck by hard and blunt object resulting in obstruction of air passage and asphyxia. The doctor has opined that neck was pressed by hard and blunt object only on the basis of internal examination that on dissection clotted blood was founding thyroid region, excessive congested trachea, ecchymosed tissues in the trachea region were found. However, it is not clear whether above symptoms were also possible due to choking of air passage as a result of fit of epilepsy.

Distinction between antemortem and postmortem burns has been underlined by Modi at page 637, according to which three main points to differential between antemortem and postmortem burns have been laid, which are: (a) line of redness, (ii) vesication; and (iii) reparative processes.

(a) Evidence of Vital Reactions--Line of Redness: In the case of a bum caused during life, a line of redness involving the whole true skin is formed around the injured part. It is a permanent line, persisting even after death, but redness or erythema, which is found beyond this line of redness due to distension of the capillaries, is transient, disappears under pressure during life and fades after death. The line of redness, being a vital function, separates living from dead tissues, and is often present in burns caused during life, though it takes some time to appear. It is however, possible that it may be absent (in the case of a person of a very weak constitution who dies immediately from shock due to bums).

(b) Vesication--Vesication caused by a bum during life contains a serous fluid consisting of albumen, chlorides, and often a few polymorphonuclear white blood cells and has a red, inflamed base with raised papillae. The skin surrounding it is of a bright red or copper 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 comprising traces of albumen and chloride. Again, its base is hard, dry, horny and yellow instead of being red and inflamed.

(c) Reparative Processes -- Reparative processes, such as signs of inflammation, formation of granulation tissue pus and sloughs, will indicate that the burns were caused during life. Burns caused after death show no vital reaction and 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. However, Spitz and Fisher have pointed out that it is not possible to establish, either with the naked eye or by histological examination, whether burns occurred shortly before death or soon after. Circumstantial evidence alone will provide the answer. Malik has described enzyme changes in the early phase of healing skin burns, in guinea pigs.

In Mulakh Raj, the Hon''ble Supreme Court while condiering the distinction between antemortem and postmortem burns has observed in para-13 thus:

Regarding the distinction between antemortem and post-mortem burns, he pointed out the lines of redness, of vasication and reparative processes as distinctive features. He elaborated the same later. A reading of it gives the distinction and would be concluded thus;

(1) Ante-mortem burn injuries are characterised by the presence of burnt carbon particles (soot) in the trachea which is absent in the case of post-mortem burn injuries.

(2) Carbodyhaemoglobin is present in the heart blood in ante-mortem burning which is absent in case of post-mortem burning.

(3) Ante-mortem burns are usually red owning to the tendency of the system to rush blood towards the injured parts for repairs, which is distinctly different from post-mortemhurns which are hard and yellowish in colour.

(4) Blisters are prominently present in ante-mortem burns. Some blisters may appear in post-mortem burns, but they are distinctly different from ante-mortem burns, where blisters are full of protein rich fluid that contains a substantial amount of white cells, caused by the tendency of the system to rush in white cells to fight against infection. The presence of protein is so high that it becomes solid on heating. Post-mortem blisters hardly contain any protein in their fluid and whatever fluid is contained has; so little protein that on heating only a faint opalescence is seen. The fluid in postmortem blisters does not contain any white blood cells.

(5) In ante-mortem burns, reparative enzymes are present in the vicinity of burnt areas as the reparative enzymes would try to repair the burnt areas. Their presence could also be used for predicting the time since the person was burnt. Various enzymes appear at the following time:

(a) Enzyme esterase--30 minutes, (b) Leucine aminopeptidase--2 hours approx. (c) Acid Phosphatase -- 3 hours approx. (d) Alkaline Phosphatase -- 5 hours. Reparative enzymes are not detected in postmortem burns.

(6) Signs of infection in a burn injury only lead to the conclusion that the burn injury is ante-mortem in nature as there cannot be infection in a post-mortem burn injury, only putrefaction. Since infection occurs roughly 36 hours after the burn, one can easily predict the time since the burn injuries occurred.

In the present case, in the postmortem report it is not observed whether burnt carbon particles (soot) in trachea were present or not. Blood found in the heart chamber has not been sent for chemical examination for confirmation whether Carbodyhaemoglobin is present in it or not. On the basis of finding that the line of redness between burnt and unburnt skin was absent and base of the vesication present over the dead body was of pale coloured and not reddish, it has been held that the injuries present over the dead body were postmortem in nature.

The trial Court has convicted the Appellants on the basis of circumstantial evidence. The circumstances, on which conviction is based are that: (i) relationship of Appellant Shantibai with deceased Uttarabai was strained as she did not approve the way deceased, discharged her domestic work, (ii) the neighbourers had overheard the Appellants quarreling with the deceased and beating her, (iii) Appellant Suresh and the deceased resided together under one roof; (iv) the deceased died as a result of throttling and her dead body was, thereafter, set on fire to cause disappearance of evidence, and (v) the Appellants did not offer any explanation as to how she died due to throttling. The trial Court has rejected the defence of the Appellants that at the time of incident, they were not present at home, by disbelieving the version of defence witnesses. The incident, admittedly, occurred in day time around 12.30 hours. There is no evidence available on record that the Appellants were present inside the house when the incident took place. On the contrary, there is unchallenged version of prosecution witness Narendra Singh (PW-6), who has deposed that Appellants Suresh and Rakesh had gone to their work whereas Shantibai informed him that she is returning from river side. Defence witnesses Laxmi Thakur (DW-1) and Krishan Kumar (DW-2) have also deposed in the similar line.

The trial Court heavily relying upon the evidence of PW-4 and PW-5 reached to the conclusion that relationship of Appellants Shantibai and Suresh was strained with deceased Uttarabai and they used to beat her. However, from their evidence, we find that PW-4 Mohanlal is not a witness of truth as he has deliberately suppressed the fact that his relationship with Appellants was strained since before, they did not visit each other and they are not even on talking terms, whereas, he has stated that he had cordial relationship with the Appellants, which is falsified from the evidence of his wife, who has admitted regarding strained relationship. This aspect has been ignored on conjecture and surmises that the neighbourer, who has to live with the Appellants, would not implicate them in a false case and their evidence is natural.

On overall appreciation of the evidence available on record, including the medical evidence, we are of the opinion that motive attributed to the Appellants for committing this ghastly act, is entirely far fetched and weak. No reasonable person would commit a ghastly act of murdering his own wife, through whom he has given birth to a child, only because his mother is not satisfied with the way the deceased discharged her domestic work. We also observe that the trial Court has ignored this aspect also that infant Satyendra died in the same incident as a result of burn injuries sustained by him while he was being taken to hospital on way. If the case of the prosecution is to be believed, in that case, the Appellants first murdered deceased Uttarabai by pressing her neck by some hard and blunt object, after she died they poured kerosene on her dead body and set her on fire. This hypothesis does not explain as to how the infant, aged 1-1/4 years, sustained burn injuries. If it is the case of the prosecution that after setting the dead body of Uttarabai on fire, the Appellants threw the child on the burning body of the deceased and thus, he caught fire, in that case, under what circumstances he survived and died later?

In the matter of Trimukh Maroti Kirkan, the Appellant, who was husband of the deceased, used to ill treat his wife for dowry of Rs. 25,000/-, which could not be fulfilled because of poor financial condition of her parents. The Appellant gave information to the police that his wife died as a result of snake biting. He also showed the place where she was allegedly bitten by the snake. However, postmortem report discloses that she died due to asphyxia as a result of compression of neck. The accused was acquitted of the charge of murder, however, the husband and other accused persons were convicted u/s 498A/34 of the IPC. Appeal preferred by the State was allowed and the Appellants were convicted u/s 302 of the IPC. Dismissing the appeal preferred by the Appellants, it was observed that the offence of dowry death is committed in complete secrecy inside the house. Nature and amount of evidence required to establish charge cannot be of the same degree as required in other cases of circumstantial evidence. Silence of inmates of the house about cause of death would become an additional link in chain of circumstances. Considering the evidence of ill treatment for dowry and also considering that husband gave information to others that she died due to snake bite, whereas medical evidence showing the death due to strangulation on the basis of injuries found on her body, conviction u/s 302 of IPC was upheld.

In the matter of Swamy Shraddananda, wife of the accused was missing since 28th May, 1991. On queries by her daughter, the accused gave false information that she had gone abroad to deliver a child and other false explanations. When daughter of the deceased came to Mumbai to meet the accused, she also found the passport of her mother, from perusal of which it was clear that she had not visited USA or London as represented to her. She lodged a missing report. During investigation, interrogation of the accused led to recovery of dead body of his wife. Thereafter, the accused was charged for murder. In these circumstances, it was held that conviction based on circumstantial evidence, where wife dies an unnatural death in her bedroom shared by her and her husband, the husband has to explain the circumstances, in which she died. Absence of any explanation would lead to a circumstance against the accused.

However, in the instant case, we have already observed that evidence of motive attributed to the Appellants for causing death of deceased Uttarabai is too weak. There is total absence of any evidence that at the time of incident, the Appellants were present in the house. On the contrary, there is unchallenged evidence that Appellants No. 1 & 3 had gone out in connection with their work, and Appellant No. 2 had gone to river to have bath. Evidence of PW-4 & 5 regarding ill treatment meted out to the deceased by the Appellants does not inspire confidence as even the parents of the deceased have not alleged that the deceased was beaten by Appellant Suresh and opinion of the doctor based on finding recorded in the postmortem report and acted upon by the trial Court, is not of such a clinching quality, on the basis of which it could be conclusively held beyond all reasonable doubt that the deceased died as a result of asphyxia caused due to strangulation by hard and blunt object by applying external pressure over neck and burn injuries found on the person of deceased were postmortem injuries. Therefore, we are of the opinion that it would not be safe to convict the Appellants on the basis of aforesaid circumstantial evidence, and the Appellants are entitled for benefit of doubt.

It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.

On the basis of aforesaid discussions, we are of the opinion that the trial Court was not justified in convicting Appellants No. 1 & 2 u/s 498A, 302 & 201 of the I.P.C. and Appellant No. 3 u/s 302/34 & 201 of the I.P.C. and the trial Court ought to have extended them benefit of doubt. l

In the result, the appeal is allowed. Conviction of the Appellants under aforesaid sections and sentence imposed thereon, are set aside. They are acquitted of the aforesaid charges. They be set at liberty forthwith, if not required to be detained in connection with any other offence.