CASE NO.: Appeal (crl.) 1913 of 1996

PETITIONER: BABURAM
Vs.
RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 29/01/2002

BENCH: N. Santosh Hegde & Doraiswamy Raju

JUDGMENT: SANTOSH HEGDE, J.

Deceased Bhagwan Devi was married to one Ram Kumar son of the appellant herein. It is stated by the prosecution that on 27.2.1988, the said Bhagwan Devi was found charred to death in the house where she was living with her husband, and at that time, the appellant was visiting them for about 3 days prior to the ghastly incident. After investigations, the Police filed a chargesheet against the appellant and his son under Sections 302 and 201 IPC and alternative charges were also framed under Section 306 read with Section 498A IPC. Almost all material witnesses examined by the prosecution had turned hostile and the trial court after considering the material on record came to the conclusion that the charges under Sections 201 and 302 were not proved against said Ram Kumar and the appellant and, therefore, acquitted them of the said charges.
However, both the accused, namely, Ram Kumar and the appellant were found guilty of the charges under Sections 306 and 498A IPC and were sentenced to undergo RI for 3 years under each count and both the sentences were made to run concurrently.

Aggrieved by the said conviction and sentence imposed
on them, the appellant and his son Ram Kumar preferred
Criminal Appeal No.53/90 before the High Court of Madhya
Pradesh and being aggrieved by the acquittal of the accused
persons of the charges under Sections 302 and 201 read with
Section 34 IPC, the State of Madhya Pradesh had preferred
Criminal Appeal No.219/90 before the said High Court. The
High Court tried both the appeals together and came to the
conclusion that so far as Ram Kumar is concerned, his
innocence is proved by the alibi set up by him and acquitted
him of all the charges whereas it partly allowed the State appeal
to the extent of the appeal filed against the appellant herein and
found the appellant guilty of offences chargeable under
Sections 201 and 302 IPC for having caused the murder of
Bhagwan Devi and for having caused the disappearance of
evidence for screening himself from the said offence and,
consequently, sentenced the appellant to undergo RI for life
under Section 302 IPC and further RI for 7 years for the offence
held proved against him under Section 201 IPC, with a
direction that both the sentences will run concurrently.

It is against this judgment of the High Court of Madhya
Pradesh that the appellant Babu Ram is before us. Mr. D.B.R.
Vohra, learned counsel for the appellant, has contended before
us that it is clear from the evidence of Dr. Fayaj Hussan, PW-1,
that the death of the deceased Bhagwan Devi was caused not by
strangulation but due to the burn injuries received by her. He
also contended that the evidence of the said Doctor in regard to
the ligature marks found on the neck of the deceased cannot be
accepted as a definite conclusion of the said Doctor and in the
absence of the prosecution producing any acceptable evidence
for the purpose of proving strangulation, the High Court could
have relied on probabilities alone to convict the appellant on the
charge of murder. On behalf of the State, it was contended by
Mr. Rohit Singh that there was enough circumstantial evidence
to drive home the point that the death of Bhagwan Devi was not
only caused by the burn injuries she received but also by
strangulation and the prosecution has established beyond all
reasonable doubt that it was the appellant who was last found in
the residence where Bhagwan Devi was found murdered.
Therefore, bearing in mind the motive emanating from the ill-
will harboured by the appellant against the deceased for not
having brought sufficient dowry, the High Court was justified
in coming to the conclusion that the death in question was
caused by strangulation and burning and both the acts must
have been committed only by the appellant. Hence, the
judgment of the High Court was unexceptionable.

We have heard learned counsel for the parties and
perused the records. First of all, it should be noticed that PW-1
in his examination-in-chief as also the post mortem certificate
did notice some transversely placed ligature marks on the front
side of the neck at the level of thyroid cartilage about inch
wide. It is the presence of this ligature mark which has made
the High Court accept the prosecution case that the death was
partly due to strangulation. On a perusal of the evidence of the
Doctor in detail, it is seen that when the said doctor was
questioned by the court in regard to the ligature marks found by
him and the effect thereof on the cause of death, this is what the
doctor said : “First there must have been partial strangulation &
thereafter she might have been burnt or it may be possible that
after the start of burn she might have been strangulated. After
burns she might have survived for about an hour and during that
period she might have been strangulated.” A bare perusal of this
evidence/statement clearly shows that the doctor was not sure
what exactly was the effect of the so-called ligature marks that
were found on the body of the deceased. His evidence is rather
uncertain in terms since that evidence postulates more than one
possible circumstance. It also indicates that the deceased could
have been conscious for nearly an hour after she was burnt and
also contemplates deceased being strangulated as she was being
burnt. If we analyse these possibilities, it will be extremely
difficult to accept the prosecution case that there was
strangulation by the appellant for the reason that if the
strangulation had taken place during the process of burning then
the probabilities are that the accused also would have some
signs of burns on his hands, if not the burn injuries itself. But
that was not the prosecution case. It is also evident from the
said doctor’s evidence that there was a possibility that the
deceased might have survived for an hour after she was
strangulated but the other evidence adduced by the prosecution
clearly goes to show that even though there were neighbours in
the proximity, nobody ever heard any shrieks from the deceased
during her alleged strangulation or burning. Therefore, in our
opinion, the evidence of the doctor does not in any manner
support the prosecution case to prove beyond all reasonable
doubt that the appellant had caused the strangulation of the
deceased.

Coming to the next aspect of the prosecution case that it
is the appellant who alone could have caused the burn injuries
on the deceased, it is to be noted that the said version of the
prosecution case is solely based on the fact that the accused was
last found in the house wherefrom the dead body was
recovered. Here again, we are unable to accept the finding of
the High Court because it is the prosecution case that the body
in question was found in a locked room where both the front
door and the window of the room were locked/bolted from
inside. The prosecution tried to develop an hypothesis that there
was a window in the house which had a barrel bolt which bolt
could have been closed from inside after a person came out of
the window and shook the window in such a manner as to put
the bolt in proper position. The learned Sessions Judge who
conducted a spot-inspection and tried to examine this aspect of
the case, has clearly stated that it was extremely difficult to do
so and he himself could do it with great difficulty and that too
in third attempt. That apart, the case of the prosecution that the
appellant might have come out of the window and then locked
it from inside afterwards is again only an hypothesis inasmuch
as no witness has ever stated that the appellant was seen coming
out of the window. It is true that some witnesses, who have
turned hostile, have stated in their examinations-in-chief that
they saw the appellant coming out of the house but they did not
say that he was coming out of the window or at what point of
time he came out of the house. Therefore, in our opinion, it is
not at all safe to draw any such inference against the innocence
of the accused based on the facts which are not at all proved.

We are satisfied that the prosecution has failed to
establish the case against the appellant beyond all reasonable
doubt. The appellant having been acquitted of the charge under
Section 201 read with Section 306 IPC, there being no cross-
appeal by the State, we do not think it is necessary for us to go
into that aspect of the matter. Even otherwise, so far as the
appellant herein is concerned, we find that there is no motive
whatsoever why the appellant should have caused the death or
abetted the suicide of the deceased because she failed to bring
in sufficient dowry. In the background of the prosecution
evidence which shows that the appellant and Ram Kumar were
satisfied with the gold-ring which was given by the father-in-
law and the Government job which he managed to get for Ram
Kumar, therefore, even according to the prosecution case, the
appellant’s son was not having any grouse against his wife on
account of bringing in insufficient dowry. We find it extremely
difficult why the appellant who was visiting his son and
daughter-in-law and had come only 3 days prior to the incident
in question, should go to such an extent of murdering or
abetting the suicide of his daughter-in-law for not bringing in
sufficient dowry. In our opinion, it is extremely dangerous to
rely upon the prosecution evidence to base a conviction against
the appellant. In the said view of the matter, this appeal
succeeds and the same is allowed accordingly. The conviction
and the sentence imposed on the appellant by the High Court as
well as the trial court are set aside. The appellant shall be set at
liberty, if not required in any other case.

(N. Santosh Hegde)

January 29, 2002. (Doraiswamy Raju)