Shimla Bai Ramprasad Baghmare vs State of Madhya Pradesh

B.M. Lal, J.

Appellant Phuleshwaribai and Simla Bai have been convicted by the Additional Sessions Judge, Balaghat u/s 302 read with Section 34, Indian Penal Code and sentenced each of them to imprisonment for life.

During the pendency of the appeal appellant No. 1 Smt. Phuleshwaribai reported dead on 17-6-1985 in Indore Hospital By order dated 23-6-1987 this Court directed the appellants'' counsel to correct the cause title of Memo of appeal. Since appellant Smt. Phuleshwaribai died, hence her appeal against her conviction u/s 302 read with Section 34, Indian Penal Code stands abated. Now there remains the appeal of appellant No. 2 Smt. Simla Bai before this Court.

Before the trial Court, both the appellants Smt. Phuleshwaribai (dead) and Smt Simla Bai were prosecuted for committing murder of Bisto Bai the daughter-in-law of Phuleshwaribai and Deorani (husband''s younger brother''s wife) of Smt. Simlabai. Appellant No. 2 Smt. Simla Bai is also daughter-in-law of Phuleshwaribai. It is alleged that Bistobai was done to death by these two appellants by throttling and thereafter sprinkling kerosene oil over the dead body, they set fire by match stick. Thus, they committed offence punishable u/s 302 read with Section 34, Indian Penal Code.

This fact is not disputed that deceased Bistobai was married to Durgaprasad son of Dashrath just two years before her premature death. Bisto Bai was the daughter of P.W. 2 Harichand. Appellant No. 1 Phuleshwaribai was the wife of Dashrath and appellant Simla Bai is the wife of the eldest son of Dashrath. They were all living in Balaghat since 15-4-1983 in Ward No. 1 in the first-floor of the house of Maniklal (P.W.5). The family was joint.

On 184-1983 the alleged incident took place. There is no direct evidence to connect the appellants with murder of Bisto Bai. The whole case hinges on circumstantial evidence. The following are the circumstances appearing on record against the appellants :

(i) Deceased Bistobai was ill treated by Phuleshwaribai and Simlabai soon after her marriage.

(ii) At the time of the alleged incident both the appellants were found present in the house.

(iii) No explanation was advanced by the appellants as to how Bistobai died.

(iv) When parents of Bistobai reached her place both the accused persons gave false narration about the death of Bisto Bai.

(v) P.W. 7 Dr. G. P. Dube who performed the post-mortem over the dead body of Bisto Bai, opined that she was done to death before she was burnt and it was a homicidal death.

In short the prosecution case is that on 18-4-1983 at about noon-time one Fattulal (P.W. 3) son-in-law of appellant No. 1 had come to the house of the appellants. Appellant Simlabai first gave him water to drink and then served him meals. At that time Bisto Bai was inside the house. Then he went to Registrar''s office and returned at about 3 P.M. when Bisto Bai offered him tea. After taking tea he left for Lamta by Satpura Exp. As such upto 3 P. M. on 18-4-1983 Bistobai was seen in the company of the appellants. Just at about 4 P. M. P.W. 6 Purshottamlal and P.W. 5 Maniklal saw that smoke was coming out from the house of the appellants. Therefore, immediately Purshottam and Maniklal rushed to the house of the appellants where they found that appellant Phuleshwaribai was sitting alongwith her grand-son outside the room near the stair-case and in the middle room Bistobai was lying burnt. P.W. 6 Purshottam immediately went to Court where he works as petition-writer and reported the matter to police inspector N. P. Mishra (P.W. 11) orally as well as in writing vide Ex. P. 5. The police then started investigation of the crime. Panchnama Ex. P. 1 and Ex. P. 2 were prepared. Photographs of the dead body were also taken vide Ex. P. 7 to Ex. P. 10. The dead body of Bistobai was then sent for post-mortem examination.

Dr. G. P. Dube (P.W. 7) held autopsy over the dead body of Bisto Bai vide postmortem examination report Ex. P. 6-A according to which on the neck of the deceased ecchomised thyroid cartilage was found on both the sides of the neck. After dissection of the neck it was found that ribbon muscles of thyroid cartilage were broken. The Doctor also found that her head, face, chest, abdomen and back were burnt. Dr. Dube opined that cause of death was asphyxia by strangulation. He also found that after her death kerosene oil was sprinkled on the dead body and then set fire with match stick. The salient features of the injuries as given in the post-mortem report (Ex. P.6A) are as under:

(i) Rigor mortis present in neck, upper and lower extremeties. Eyes were closed, tongue was out in between teeth and nails were bluish.

(ii) There were superficial and deep burns of whole body. Black sooty colour was present. Hairs were burnt. Smell of kerosene oil was present. Skin cuticle was peeled off except under clothes around chest and waist. No vesicles were present. The area burnt was scalp, face, neck, upper and lower extremeties, chest, abdomen and back.

(iii) Examination of neck; Skin ecchomisis just above thyroid cartilage on both sides of mid-line was present as shown in figure-one. In dissection of neck ribbon muscles of neck just above thyroid cartilage were found to be ecchomised and ruptured as shown in figure-two.

(iv) On dissection of thorax the larynx and trachea were found to be intact but mucus membrane of trachea was congested. Both lungs were congested and on cutting they exuded dark fluid blood-veins contained dark fluid blood.

Believing the statements of P.W. 6 Purshottam and P.W. 5 Maniklal, coupled with the post-mortem examination report (Ex. P.6A) and the Statement of Dr. G. P. Dube (P.W.7), the trial Court convicted the appellants u/s 302 read with Section 34 Indian Penal Code and sentenced as aforesaid, against which the present appeal is filed.

The learned counsel appearing for the appellants contended that, the entire case against the appellants hinges on circumstantial evidence and the prosecution having not proved the material circusmtances against the accused, the chain of circumstantial evidence is not complete and thus no case is made out u/s 302 read with Section 34 Indian Penal Code against the appellants.

Earlier we have narrated five circumstances appearing against the accused to connect them with the commission of the offence.

In the post-mortem examination report (Ex. P.6A) it is clearly mentioned by Dr. G. P. Dube (P.W. 7) that smell of kerosene oil was coming out of the dead body when the post-mortem was done and this fact has not been disputed by the defence. The Doctor (P.W. 7) has opined that the death of Bistobai was not due to burning but her death was due to strangulation. The most significant thing in this case is that the place where the incident took place, is in thickly populated area of Balaghat town and as alleged by the accused that it was a case of suicide, then in that case when the deceased was burning, she would have raised cries for help and further would have tried to rush out which normally even in cases of suicide happens. Further, according to the medical evidence, no room of doubt is left that the burns were homicidal and the same were caused after strangulation by sprinkling kerosene oil and setting fire. The cause of death as opined by Dr. G. P. Dube (P.W. 7) who conducted the post-mortem, is asphyxia due to pressure over neck. There were 100% burns due to kerosene oil. The Doctor has further dearly stated that the burn injuries were post-mortem. The case of asphyxia is proved beyond doubt that after strangulation death was caused, otherwise, the tongue of the deceased would not have been found in between the teeth. The Doctor has made it clear that if a person is burnt alive, then minute particles of carbon will be seen in lungs, trachea and bronchi, but in the present case he has not mentioned about this in the post-mortem report as they were not there. The dictum laid down in the case Ashok Dube vs. State of M. P., 1980 M.P.L.J. 300, fully applies to the facts of the case in hand.

As stated in the preceding paragraph, there are five circumstances appearing against the accused persons and by proving them the prosecution has completed the chain of circumstantial evidence against them. No doubt, it is true that circumstantial evidence is a weak type of evidence, provided the chain of circumstances is so complete that it connects the accused with the alleged guilt. Therefore, where there is no direct evidence against the accused and the case rests on circumstantial evidence in order to prove the guilt of the accused, the following conditions must be fulfilled.

(i) The circumstances from which the conclusion of the guilt is to be drawn must be fully established. The circumstances concerned ''must or should'' and not ''may 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 of the offence alleged.

(iii) The circumstances should be of a conclusive nature.

(iv) They should exclude every possible hypodiesis except the one to be proved, and

(v) There must be a chain of evidence so complete as it must not leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act was done by the accused and accused alone.

Learned counsel for the appellants did not dispute this fact that at the time of the alleged incident, no male member of the family was present in the house. Durga Prasad, husband of the deceased, who was working in the Municipal Council, Balaghai, was on duty at the material time on that day. This fact was inquired into by the investigating officer Shri N. P. Mishra (P.W. 11) and was found true. The statements of P.W. 5 Maniklal and P.W. 6 Purshottam unequivocally prove that on seeing smoke was coming out of the house of the appellants, they reached there and found that Mst. Phuleshwaribai, mother-in-law of the deceased was sitting outside the room near the door alongwith her grand-son and the deceased Bistobai was lying burnt in the middle room. They further stated that appellant No. 2 Simlabai, sister-in-law (Jethani) of the deceased was found standing near the stair-case in the court-yard. P.W. 3 Fattulal, son-in-law of Phuleshwaribai has also stated that on the day of the occurrence he had been to Balaghat for getting a document registered in respect of sale of some land. He reached his in-laws'' house and took mealsfetc. Thereafter, he went to Registrar''s office and again returned to his in-laws'' place where tea was offered to him by Bisto Bai. Then he started for his village at 3 p.m. As such it is established by the evidence of this witness (P.W. 3) that till 3 p.m. no male member was there except the two appellants.

P.W. 2 Harichand, father of the deceased stated in para 2 of his statement that deceased Bistobai had complained him that she was being tortured and ill-treated by Mst Phuleshwaribai, her mother-in-law and Mst Simla Bai her sister-in-law (Jethani). This fact corroborated by P.W. 3 Fattulal, son-in-law of Dashrath. He (P.W. 3) states in paras 2 and 3 of his deposition that he had received a letter to this effect from the father of the deceased Bistobai and advised Durga (husband of the deceased) that he should treat all equally and should not give ill treatment He gave that letter to Durga. P.W. 4 Sukhram also states in para 2 of his deposition that the deceased Bistobai had complained him that her mother-in-law and sister-in-law ill-treat her.

Both Maniklal (P.W. 5) and Purshottam (P.W.6) state that the room where Bistobai was lying burnt, was giving kerosene oil smell. This fact is further fortified by the post-mortem report (Ex. P. 6A). According to medical evidence the deceased Bistobai met with homicidal death. In a case like the present one where all the five links, as stated, have been satisfactorily proved, establishing thereby that the appellants were in proximity of Bistobai and the circumstances point to the appellants and appellants alone as the perpetrator of the crime, both the appellants have not offered any explanation as to the cause of the death of Bistobai, which if offered and accepted, though not proved, would afford a reasonable basis for conclusion that the entire case is consistent with their innocence. But the absence of such an explanation would itself be an additional link to complete the chain of circumstantial evidence. (See Deonandan Mishra Vs. The State of Bihar,

Under such set of circumstances we are of the opinion that the trial Court has rightly reached the conclusion, particularly in the absence of any explanation furnished by the accused persons about the homicidal death of Bistobai and that the essential conditions in a case based on circumstantial evidence have been established againsi the appellants, inasmuch as various links in the chain of circumstantial evidence led bv the prosecution have been satisfactorily proved and the said circumstances point to the guilt of the appellants with reasonable definiteness and further the circumstantial are in proximity to the time and situation as are appearing from the statements of Fattulal (P.W.3) and Purshottamlal (P.W. 6). The leading case on the point of cirrcumstance evidence decided by the Apex Court of the Land is that of Hanumant Vs. The State of Madhya Pradesh, , which has been uniformly followed in a catena of cases and the same view is reiterated in Tufail v. State of U.P., (1969) 3 SCC 198 , Ram Gopal Vs. State of Maharashtra, and reconty in Sharad Birdhichand Sarda Vs. State of Maharashtra, . In the above cases the ratio laid down regarding ''circumstantial evidence'' is the touch-stone (sic)ases, like the present one which is also based on circumstantial evidence. If the same yard-stick is applied in the instant case, no room of doubt remains to reach the conclusion that it is the appellants and appellants alone who have committed murder of Bistobai by strangulating her and thereafter sprinkling kerosene oil, set her to fire.

From the discussion aforesaid the appeal is devoid of any substance and it is hereby dismissed. The conviction and sentence of the appellant Simlabai are maintained. She is on bail. She will surrender to her bail-bond for undergoing the sentence of imprisonment for life awarded to her. As stated earlier, appellant No. 1 Phuleshwari Bai died during the pendency of this appeal and as such her appeal abates and is dismissed accordingly.

However, looking to the young age of appellant Simlabai who was hardly aged about 22 years at the time of the commission of the offence, having a child in her lap, the State Government if approached, may consider her case appropriately either to remit the sentence or to commute the same in exercise of its jurisdiction under Sections 432 and 433 Criminal Procedure Code. Copy of this judgment be sent to the State Government for necessary action.