Mahabir Mandal & Ors Vs. State of
Bihar  INSC 66 (7 March 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ SHELAT,
CITATION: 1972 AIR 1331 1972 SCR (3) 639 1972
SCC (1) 748
Penal Code--Murder--Death by
The first appellant and another were convicted
under s. 302 read with ss. 34, 120B and 201 of the Penal code and two other
accused who were tried along with them were convicted under ss. 120B and 201.On
the materials on record, the trial Court and the High Court found that the
first appellant was responsible for the death of the deceased by poisoning.
The doctor who performed the post mortem
examination on the dead body gave evidence that the death of the deceased might
have been a normal death. He ruled out an as phyxial death by morphine
poisoning, because, according to him, there was no indication of any of the
following characteristics which are to be found in cases of such a death:
"(a) Right lung is full of blood and left is empty (b) Lividity of faces
and fingers and nails (c) Congestion of the brain (d) Froth or blood froth in
the trachea (e) Puncti form ecchymosed in the lungs with congestion of
lung-,". He was declared hostile and another doctor examined by the
prosecution also stated that he could not form any opinion about the Cause of
death except that death had resulted due to respiratory failure.
Confirming the conviction of the first
appellant for murder and allowing.the appeals in part,
HELD : (i) The circumstances of the case and
the evidence on record clearly point out that the first appellant was
responsible for the death of the deceased and the death was caused by
poisoning. When there is no eye witness of the occurrence, the court should not
insist upon evidence regarding the exact manner in which the death was caused.
Poison can be administered not only orally
but also hypodermically or intervacularly with the help of a syringe.
In the present case, the conduct of the first
appellant in removing the dead. body immediately after the death of the
deceased and the same remaining submerged in water for more than 24 hours
prevented promt post mortem examination on the dead body. On the material, it
can be said that there were some features like the congestion of both the
lungs, the kidney, the liver and the spleen of the victim, which, according to
the doctor were indicative of death by respiratory failure and the same could
be caused by poisoning. Tile fact-that the heart of the deceased at the time of
post mortem examination was found to be empty would not rule out asphyxial
death as a result of poisoning. In many cases of as physical death both the
sides of' the heart are found to be full if examined soon after death but after
rigor mortis has set in, the heart is-found contracted and empty. The fact that
no poison could be detected in the viscera of the deceased would not militate
against the conclusion that the death of the' deceased was due to poisoning.
There ire several poisons which do not leave any characteristic signs as can be
seen on post mortem examination. [653A-D] 640 Taylor's Principles an Practice
of Medical jurisprudence, Twelfth Edition, p. 199; Modi's Medical Jurisprudence
and Toxicology Seventeenth Edition pp. 125, 447; Legal Medicine, Pathology and
Toxicology, by Gonzales, referred to.
(ii) If circumstantial evidence in the
absence of direct proof is so decisive that the Court can unhesitatingly hold
that the death was as a result of administration of posion (though not
detected.) and that the posion must have been administered by the accused
person, then conviction can be rested on it. Therefore there are no cogent
grounds to interfere with the findings of the two courts that the death of the
deceased was not natural but homicidal.
(iii) No case has been proved against two of
the appellants and their conviction has to be set aside. The rule in section
162 of the Code of Criminal Procedure is not applicable to statements falling
within the provisions of clause (i) of section 32 of the Evidence Act or to
affect the provisions of section 27 of that Act. But there is nothing in the
present case to show that statements made by the two appellants to the police.
on which the prosecution relied. resulted in the discovery of any incriminating
material as may make them admissible under section 27 of the Evidence Act. As
such the aforesaid statements must be excluded from consideration.
Anant Chintaman Lagu v. The State of Bombay ,
 12 S.C.R. 460 and State of M.P. v. Ramkrishna Ganapatia Limsey
& CRIMINAL APPELLATE JURISDICTION : Cr.
A. No. 97 of 1969.
Appeal by Special Leave from the Judgment and
Order dated the 31st January, 1969 of the Patna High Court in Criminal Appeal
No. 254 of 1966.
A. S. R. Chari and D. Goburdhun, for the
R. C. Prasad, for the respondent.
The Judgment of the Court was delivered by
Khanna, J. Mahabir Mandal (58), Dasrath Mandal (24). Kasim Ansari (30), Mahadeo
Sah (60) and Kedar Nath Upadhya (28) were tried in the court of Additional
Sessions Judge Monghyr. The learned Additional Sessions Judge acquitted Kedar
Nath Upadhya. Mahabir and Dasrath were convicted under section 302 read with
section 34, 120B and 201 Indian Penal Code. For the offence under section 302
read with section 34 Indian Penal Code. each of those two accused was sentenced
to undergo imprisonment for life, while for the offence under section 201
Indian Penal. Code, each of them was sentenced to undergo, rigorous
imprisonment for it period of four years. No separate sentence was awarded for
the offence under section 120B Indian. Penal Code. The sentences 641 awarded to
each of the two accused were ordered to run concurrently. Mahadeo and Kasim
were convicted under sections 120B and 201 Indian Penal Code. For the offence
under section 201 Indian Penal Code, each of these two accused was sentenced to
undergo rigorous imprisonment for a period of three years. No separate sentence
was awarded for the offence under section 120B Indian Penal Code to Mahadeo and
Kasim. The appeal filed by Mahabir. Dasrath, Kasim and Mahadeo was dismissed by
the Patna High Court. The four convicted accused have now come Lip in appeal to
this Court by special leave.
Mahabir accused, who was practising as a
homeopathic doctor at Jamalpur in district Monghyr, is the father of Dasrath
accused. Dasrath was studying in the final year in Medical College, Dharbhanga
at the time of occurrence and was having house surgeon's training in that
college at the time of the trial. Kasim is stated to be the compounder of
Mahabir accused, while Mahadeo accused was employed by Mahabir as a servant to
look after Mahabir's field.
Indira Devi deceased. (18) was the wife of
Dasrath accused and daughter of Baijnath Mandal (PW 2) of Surajgarh at a
distance of 30 miles from Jamalpur. Indira was aged about 13 years at the time
of her marriage and continued to stay after the marriage at her father's house
for about five years. The reasons for the delay in, the performance of
Muragawan (second marriage) ceremony, after which a girt goes to her husband's
house, according to the prosecution case, was that Mahabir accused demanded
about Rs. 2,500 as Dan Dahej from Baijnath PW. The amount was. however, not
paid by Baijnath. Letter dated March 29, 1962 was then received by Baijnath
from Dasrath accused wherein Dasrath reminded Baijnath of his promise to pay Rs.
2,500 to Dasrath so that Dasrath might obtain admission in Calcutta National
Medical College for the purpose of his further education.
Muragawan ceremony of Indira was performed in
April 1962 and Indira went to-the house of her husband and his father in
Jamalpur. A few months after that, in the month of Bhadon 1962, Baijnath took
Indira to his house after receipt of a letter for that purpose from Dasrath
accused. A few weeks thereafter Indira was taken by Mahabir accused to his
After Indira had stayed at the house of her
father-in-law for some time, Mahabir accused levelled allegations against
Indira that she was having illicit intimacy with his second son Rajendra.
Mahabir also sent a letter to Baijnath to take Indira to his house in
Surajgarh. Indira was accordingly taken in the month of December 1962 to
Baijnath's house. Mahabir after that expressed his reluctance to take backIndira
to his house. In May 1963 the Tilak ceremony of Mahabir's daughter as well as
the marriage of Mahabir's youngest son Mahendra were to be performed. Indira
was not invited for these occasions from her father's house. Baijnath then took
Indira and left her at the house 642 of Baijnath in bringing Indira and leaving
her at their house. On June 7, 1963 Mahabir wrote a letter to Baijnath wherein
he complained that some people had set fire to the house of Mahabir on the
occasion of the marriage at the instance of Baijnath.
The case of the prosecution further is that
in August 1963 Mahabir accused went to Calcutta and met Bhai Lal Mandal (PW
18), who is a cousin and partner in hotel business of Baijnath PW, and asked
Bhai Lal to request Baijnath to take his daughter Indira from Mahabir's house,
because Indira was having illicit intimacy with her husband's younger brother who
was an engineering student. Mahabir also told Bhai Lal that if Baijnath would
not take Indira, he (Mahabir) would give some fatal injection to Indira. Bhai
Lal thereupon sent letter dated August 8, 1963 to Baijnath in an insured cover.
Referring to the talk with Mahabir, Bhailal stated in that letter :
"In the end, Doctor Babu told us that
now he would take his action very soon. She was the cobra of his house. He has
such an injection in his possession that nothing will be known and she will
remain sleeping. At present I give her one injection at an. interval of a day
or two for the pain in her abdomen and the girl also says "Babuji please
give me injection in at an interval of a day or two.
The pain of my abdomen remains subsided with
the injection." On the same pretext he will give her that injection also
that she will not even know about it and will depart from my house for ever. He
was saying that lie would take that action within a month." Indira died in
the house of Mahabir accused in Mohalla Nayagaon in Jamalpur on the night of
September 17, 1963.
Mahadeo accused earlier on that evening had
been told by Mahabir accused to sleep at the latter's house for the night. At
about 1.30 a.m. or 2 a.m. on that night, Mahabir accused, who is known as
Doctor Sahib, awakened Mahadeo as well as Kasim and Gobind, another servant of
Mahadeo the n brought a taxi driven by Kedar
Nath Upadhya accused. Mahadeo went with Mahabir accused inside the house and
saw the deadbody of Indira lying on a cot. No one else was present in the
house. The, mouth of Indira was open and there were no apparent injuries on her
Mahabir and Mahadeo accused then picked up
the dead body and brought it outside the house. Gobind was also asked to assist
in the carrying of the dead body. The dead body was then placed in the taxi on
the back seat. Gobind and Mahadeo sat below the seat by the side of the dead
body, while Mahabir and Kasim accused sat on the front seat along with the
driver. A cement bag with bricks was placed in the boot of the taxi. The dead
body was 643 then taken to Kamarganj, Ghat on the bank of Ganges at a distance
of 21 miles from Jamalpur. At the Ghat the bag filled with bricks was tied
round the waist of Indira's dead body. Mahadeo and Gobind took the dead body
into the water of the Ganges and threw it there in chest-deep water.
Mahabir and others then went back to Jamalpur
and reached there at 5 a.m.
Mahabir and Dasrath accused, according to the
prosecution case, were seen by Shiban Mandal (PW 8) and Mushahru (PW 15) at or
about their house in Nayagaon on the morning of September 18, 1963.
Head Constable Suleman Khan (PW 6) was during
the days of the occurrence posted at police post Nayagaon. On the morning of
September 18, 1963 when he went to the tea stall for taking tea,he heard from
some persons about the death of Indira and the removal of her dead body at
The Head Constable gave this information at
11 a.m. to SubInspector Kishori Lal (PW 2') at Jamalpur police station.
The Sub Inspector made an entry about the
information in the station diary.
Sub Inspector Kishori Lal then went to the
house of Mababir and found the door closed. There was no response to the
knocking at the door. Kasim and Mahadeo accused were then sent for and were
In the meanwhile, on the morning of September
18, 1963, it is stated, Baijnath PW sent his younger brother Jagdish (PW 9) to
Monghyr to make some purchases. Baijnath also asked Jagdish to go to Nayagaon
and meet Indira. Jagdish reached Nayagaon at about 8 a.m. In Nayagaon Jagdish
came to know from his relative Sita Devi that Indira had died during the
previous night and her dead body had been removed. Jagdish then hired a taxi,
went to Surajgarh and informed Baijnath about the death of Indira and the
removal of her dead body.
Baijnath and Jagdish then came in that taxi
Baijnath on arrival at Jamalpur lodged report
Ex. 18 at police station Jamalpur at 2 p.m.
Sub Inspector Kishori Lal, it is further
alleged, went again to the house of Mahabir accused at about 3.30 p.m. on
September 18, 1963. Mahabir and Dasrath accused were not found in spite of
search. Outside the dispensary of Mahabir, the Sub Inspector found lying on a
table two empty ampules of coramine, one empty phial of homeopathic medicine on
which words "Mere sd." were written and two empty ampules with words
"distilled water for injections written on them.
Those articles were seized by the Sub
Inspector. Mahadeo and Kasim accused were put under arrest, After the
interrogation of Mahadeo accused, on September 1 8, 1963 ASI Birbhadra singh
went with Mabadeo accused to a place 644 called Chandi Asthan on the bank of
river Ganges and spread a net in the river, but the dead body of Indira was not
found there. The police party then returned to the police station. There was
further interrogation of Mahadeo and Kasim accused. Early on the morning of
September 19, 1963 at about 5 a.m. ASI Birbhadra Singh accompanied by Mahadeo
and Kasim accused went to Kamarganj Ghat. A place was then point ed by Mahadeo
accused. From that place Mahadeo accused brought out of the water the dead body
of Indira. A bag full of bricks was found tied to the waist of the dead body.
ASI Birbhadra Singh then prepared the inquest reports and took into possession
the bag filled with bricks.
Post mortem examination on the dead body of
Indira was performed by Dr. Hari ghankar Prasad (PW 21) on September 19, 1963
at 4.3O a.m. at sadar Hospital Monghyr. The doctor found ,greenish
discolouration over face and abdomen and an abrasion 2-1/2 on left cheek '
According to the doctor, Indira had died within 36 to 48 hours before the Post
mortem examination. There was no mark of ligature or wound on The neck. The
skull and vertebrae were found to be normal. Right lung and left lung were found
Heart was normal and empty. Liver, spleen and
kidney were "normally congested". Bladder was normal and empty.
Viscera were preserved and sent to the
According to the report of the Chemical
Examiner, no poison could be detected in the viscera of Indira.
Confessional statement of Mahadeo accused was
got recorded from Shri B. M. Rastogi magistrate on September 21, 1963.
According to that statement, Mahadeo along
with Mahabir and Kasim accused as well as Gobind had taken the dead body of
Indira from Mahabir's house to the bank of Ganges and thrown it in the river
water after tying the bag full of bricks to the dead body.
Mahabir, Dasrath and Kedar Nath accused
absconded after this occurrence. Mahabir and Dasrath accused surrendered in
court on September 30, 1969. Kedar accused too was arrested. Attempt was also
made to arrest Gobind but he was found to be absconding.
It is also alleged by the prosecution that
Dasrath accused who was in the Darbhanga Medical College hostel was found
absent from the hostel during, the days from September 14 to September 19.
Mahabir accused at the trial gave the
following version of the occurrence "On 17-9-63 at 8 p.m., she (Indira)
About 1-2 1/2 months before it, she was
seriously suffering from stomach trouble and there was no hope for her life.
645 Baijnath lived at my house for four days
and attended her. Letter (Ext. B / 1) is proof thereof. Four days be-fore her
death, she suffered from ordinary Influenza and she was under my treatment. On
17-9-63 in the morning there was remission of her fever. On that date at about
7.45 p.m. I came back to my house, and asked Indira's condition. My wife told
me that she was quite well for the whole day and that she was not feeling well
for the last 5 to 7 minutes. Thereafter I went inside. On enquiry Indira told
that she was not feeling well. Then I began to feel her pulse. All of a sudden
she had convulsion and she died within 4 seconds. I could not understand as to
what was the cause of her death. I am myself a doctor. There was no necessity
of beating drums (spreading news) as to her illness." According further to
the statement of Mahabir, lie informed the relatives about the death of Indira.
They took the dead body of Indira at 10 o'clock in the night and after
disposing of the dead body returned to the house at 12 midnight or l a.m. Jitan
Mandal, Thakur Mandal and Mahadeo went with Mahabir when the dead body was put
in the river.
Mahabir further stated:
"I do not know Gobind. After disposal of
the dead body, we came back to our house between 12 O'clock and 10'clock in the
night, Mahadeo put the bag full of bricks on the taxi. It is our custom either
to burn or drown the dead body, but specialty young girls are cent per cent
drowned because while burning, the clothes are burnt and the dead body becomes
naked. Hence after putting fire in the mouth of the dead body of a young girl
the same is generally drowned. For drowning the dead body some heavy burden is,
tied, so that the dead body might not float, and nobody might see it and dog or
jackal might not eat." Mahabir denied having met Bhai Lal in Calcutta and
having told him that he (Mahabir) would give a fatal injection to Indira. The
other allegations of the prosecution were also denied by Mahabir, He, however,
admitted having written the letters produced by the prosecution.
Dasrath accused in his statement under
section 342 of the Code of Criminal Procedure stated that he was at Darbhanga
during the days of the present occurrence, and was staying at the house of a
close relative, Shri Ram Lakhan Bhagat Advocate,, because the eldest son of
Shri Bhagat was suffering from typhoid and there was no other male member to
attend upon him. The plea of Kasim accused was denial simpliciter.
13-L1031 Sun.CI/72 646 Mahadeo accused in the
course of his statement under section 342 of the Code of Criminal Procedure
stated that Indira died at about 8 p.m. and later on that night, Mahadeo was
awakened by Mahabir accused. Mahadeo added "At 8 O'clock in the night after
the death of Indira, Dr. Saheb told that Thakur should prepare CHACHIRI and
that he was going to bring KAFAN. Ladies were weeping inside the house. Gobind
was not there. It was rainy season. At the instance of Dr. Saheb, Thakur and
myself kept bricks in a gunny bag,. Dr.
Saheb went to ask 10 or 15 persons to go with
the dead body. When he came after saying to them, it began to rain.. At the
instance of other persons, Dr. Saheb went to bring two taxis but only one taxi
could be available.
For want of accommodation in the taxi, 1, Dr.
Saheb, Thakur and Jitan took the dead body on the taxi and remaining persons
could not go." Mahadeo admitted having thrown the dead body in the river.
Written statement was also filed on behalf of
The trial Court came to the conclusion that
the possibility of the death of Indira due to morphine injection could not be
ruled out. It was held that Mahabir and Dasrath accused had conspired to kill
Indira by administering poison, or at any rate, Dasrath accused had connived at
the, murder of Indira by Mahabir accused Both of them were further held to have
conspired to dispose of the dead body secretly with a view to screen themselves
from legal punishment. Mahabir and Dasrath accused were accordingly convicted
and sentenced as above. Kedar accused was given the benefit of doubt and was
acquitted. As regards Mahadeo and Kasini accused, it was held that though they
had joined in the disposal of the dead body, they were not parties to the
conspiracy to murder Indira.' These two accused were, however, found to have
conspired to dispose of Indira's dead body with a view to screen Mahabir and
Dasratli accused from legal punishment of murder. Mahadeo and Kasim accused
were accordingly convicted for offences under sections 120B and 201 Indian
On appeal the High Court found that the
following facts had been proved:
"(1) Appellant Dasrath was not keen to
have the DURAGAMAN ceremony performed even after more than four years of his
marriage and was putting pressure on Indira's father to pay the promised sum of
Rs. 2500/-to him although in fact there was no such promise from his
647 (2) Dasrath had in the meantime come in
some sort of close intimacy with a girl medical student of Kanpur, named,
Madhuri Chourasia and was on correspondence with her.
(3) Deceased Indira was suspected by Dasrath
and by his father and step mother of illicit intimacy with Rajendra when she
came in Aswin in 1962 to stay at Mahabir's place and they decided to abandon
her at her father's place never to be called back again.
(4) On the asking of Dasrath and Mahabir the
father of Indira brought her back to his place in December, 1962.
(5) Indira was not asked to join her
husband's family on the occasion of the TILAK of Mahabir's daughter and third
son Mahendra in May, 1963.
(6) Baijnath went uninvited with Indira to
Nayagaon on that occasion and he was insulted by Mahabir and Dasrath; but still
Baijnatli left Indira there and returned alone to Surajgarh.
(7) Mahabir immediately wrote a post card (Ext.
1/3) expressing his acute bitterness, disgust and hatred for Baijnath and his
(8) On 7th August, 1963 Mahabir in, Calcutta
had talks with Bhailal an uncle of Indira and Mahabir conveyed to him his idea
of injecting Indira to death within a month if she was not removed by 'her
father from his place.
(9) Dirty allegations were made against her
character and she was described by Mahabir before Bhailal as cobra.
(10) Bhailal immediately conveyed to Baijnath
the gist of the conversation he had with Mahabir by letter Ext. 114 by dated
(11) Mahabir on his own admission before
Bhailal was already giving injections to Indira to relieve her of some stomach
(12) Suddenly Indira died on the night of
(13) No relation or neighbour at Nayagaon
came to know of her deaths on that evening.
(14) The father of the deceased girl was not
informed .about the death although Surajgarh was not very far 648 and there was
undue hot haste in disposing of the body on the very night of her death.
(15) The dead body was stealthily carried
away by Mahabir and his three servants including Qasim Ansari on a taxi at dead
of night and was sunk unceremoniously in Kamarganj Ghat 21 miles away although
the nearer burning ghat or bank of the Ganges was at Lal Darwaza ox Chandi
Asthan at Monghyr, only five to six miles away from Jamalpur.
(16) The body was not cremated according to
(17) Rumour about surreptitious disposal of
the dead body was reported at Jamalpur Police Station and enquity was at once started
by the thana officer on the morning of 18-9-1963 and Mahadeo and Quasim Ansari
made discrepant statements about the, death and disposal of the dead body on
(18) Mahabir and also Dasrath (who was seen
at Jamalpur on the morning of 18-9-1963) absconded and remained traceless till
(19) Mahadeo misled the police in searching
out the dead body in the evening at Chandi Asthan on 18-9-1963 and later on a
subsequent clue furnished by him the police party came to Kamarganj Ghat and
recovered the dead body from the river bed.
(20) Upon post mortem examination heart was
found empty and normal and it excluded the possibility of natural deathdue tosyncope
or vagal inhibition.
(21) Dasrath was absent from his hostel at
Darbhanga from 14-9-1963 and again from 23-91963 till 30-9-1963 when he and his
father Mahabir surrendered in court.
(22) The plea of alibi of Dasrath remained
unsubstantiated." In the result, the conviction of the accused-appellants
was upheld and their appeal was dismissed.
In appeal in this Court Mr. Chari on behalf
of the appellants has argued that the material on record does not establish
that Mahabir accused caused the death of Indira deceased. In any case,
according to the learned counsel, it has not been proved that the death of
Indira was homicidal and not natural. So far as Dasrath accused is concerned,
the submission made is that there is no cogent evidence on the record to show
that he was present at 649 his house in Jamalpur on the night of occurrence. As
regards Kasim accused, the counsel contends that he is not proved to have taken
part in the removal of the dead body of Indira from the house of Mahabir. In
respect of Mahadeo, the argument is that he did not know that Indira had been
murdered. The above contentions have been controverted by Mr. Prasad on behalf
of the respondent State. We have heard the arguments at length and shall now
proceed to examine as to whether the prosecution has been able to establish the
charge against the accused and if so, against which of them.
We may first take the case of Mahabir
accused. It is the case of the prosecution that Mahabir had an aversion for
Indira deceased and suspected her of illicit intimacy with his second son
Rajendra. Indira was consequently sent to her father's house. The above facts
are proved by the evidence of Baijnath (PW 2) and are corroborated by letter
dated July 6, 1962 sent by Dasrath accused to Baijnath PW.
The evidence of Baijnath PW further shows
that after Indira had been brought to his house in December 1962, Baijnath made
many efforts to send Indira to the house of Mababir, but Mahabir declined to,
keep her in his house. In May 1963 the marriage, of Mahandra and Tilak ceremony
of Mahabies eldest daughter were to be performed. Mahabir did not send for
Indira on the occasion of the above Tilak ceremony.
Baijnath on coming to know of the Tilak
ceremony personally took Indira with him to Mahabir's house. Mahabir resented
the act of Baijnath in bringing Indira to his house on the above occasion and
made no secret of his resentmnent.
Baijnath all the same left Indira at
Mahabir's house under the belief that the anger of Mahabir would subside. The
fact that Mahabir became angry because of Indira having been brought to his
house by Baijnath on the occasion of the above Tilak ceremony is admitted by
Mahabir also in his statement under section 342 of the Code of Criminal
After the Tilak ceremony of Mahabir's
daughter, Indira continued to stay at the house of Mahabir. Mahabir, however,
did not feel happy over this. Mahabir also suspected that some people had set
fire to his house on the occasion of the marriage of his daughter at the
instigation of Baijnath. On June 7, 1963 Mahabir wrote a letter to Baijnath in
the course of which Mahabir stated "So far your daughter is living
peacefully but you, who have kept your daughter (here) secretly, have done a
great harm. You who have done this act in collusion with my enemies and you
have thought that it would be for your good. Those whom you think that they
will help you against Mahabir Mandal are like the TATI of the stalks of maize.
You should know that there is man of brain on this side also to burn the action
which you take.
650 Hence you should come as soon as you
receive the letter and have a face to face talk. Your daughter can live or go
only after settlement made in the talk. You should not hesitate in coming
(here) I shall not quarrel. What-, ever action will have to, be taken, will be
taken with brain. If you do not come its result will be bad." The writing
of the above letter has been admitted by Mahabir in his statement under section
342 of the Code of Criminal Procedure. The letter shows that Mahabir was not
prepared to keep Indira at his house unless some amends were made by her
The evidence of Bhai Lal (PW 18), who, is a
cousin of Baijanath PW and runs hotel business, shows that on August 7, 1963
Mahabir went to the witness in Calcutta and told the witness to request
Baijnath to take his daughter from the house of Mahabir as Mahabir did not like
to keeps her in his house. Mahabir also added at that time that Baijnaths
daughter was having illicit intimacy with the other son of Mababir and this
would create complication in the family when the sons of Mahabir came, during
vacation to the house.
Mahabir even went to the extent of describing
the daughter of Baijnath as a cobra in the house. According further to Bhai
Lal, Mahabir held out a threat while leaving that if Baijnath did not agree to
take back his daughter, he would give some fatal injection to Indira. On the
following day Bhai Lal sent a letter narrating the above facts to Baijnath As
some money was, also being sent along with that letter by Bhai Lal to Baijnath,
the letter and the money were, sent in an insured cover. The evidence, of Bhai
Lal in this respect is corroborated by that of Baijnath PW to whom the letter
was sent. Baijath also referred to the above threat of Mababir conveyed through
Bhailal in the first information report. Both the trial court and the High
Court accepted the prosecution evidence in this respect and nothing has been
urged in this Court as may Justify interference with the above appraisement of
It is a common case of the prosecution and
the defence that Indira died suddenly in Mahabir's house in his presence on the
night between September 17 and September 18, 1963. The evidence of Baijnath
shows that no intimation about the death of Indira was, sent to him. Mahabir
accused later on that night arranged a taxi. and with the help of Mahadeo and
others placed the dead body in the taxi. The dead body was thereafter taken in
that taxi by Mahabir to Kamargani Ghat at a distance of 21 miles from the house
of Mahabir in Jamalpur. A bag full of bricks was also carried in the taxi. The
dead body of Indira was then thrown into chestdeep water of the Ganges after
the bag full of bricks had been tied to the waist. The above facts are also not
disputed 651 by Mahabir. According to him, they took the dead body at about 10
p.m. and after the body was thrown into the Ganges they returned at about
mid-night or 1 a.m.
After report had been lodged by Baijnath with
the police on the following day that, is, September 18, 1963 Mahabir accused
was found to be absconding and was not traced till he surrendered himself in
court in September 30, 1963.
The dead body of Indira could not be
recovered on September 18, 1963 and was recovered only on the morning of
September 19, 1963 after the particular spot at Kamarganj Ghat had been pointed
by Mahadeo accused.
Post mortem examination on the dead body of
Indira deceased was performed by Dr. Hari Shanker Prasad. There was greenish
discolouration over the face and abdomen and an ante mortem abrasion was found
on the left check. Eyes were protruding and corneas were hazy. Decomposition had
started, and according to the doctor, the time between the death and post
mortem examination was 36 to; 48 hours. Both the lungs were found congested.
Heart, according to the doctor, was normal and empty, while liver, spleen and
kidney were "normal congested'.
The above circumstances, in our opinion,
clearly point to the conclusion that Mahabir accused was responsible for the
death of Indira. It is no doubt true that there is no ocular evidence in this
case regarding the commission of the crime but the chain of different
circumstances are consistent only with the hypothesis of the guilt of Mahabir.
Mahabir was not only inimically disposed
towards Indira, he had also held out a threat that if she was not taken from
his house he, would administer an injection to her as a result of which she
would die. The conduct of Mahabir after he death of Indira at a time when
according to him, he was feeling her pulse speaks volumes of his guilty
Had Indira's death been natural and not the
result of foulplay, there was no reason as to why Mahabir should not have
immediately informed her father of her death. According to Mahabir, he sent a
post card to Indira's father on the following, day. No question on that score,
however, was put to Indira's father Baijnath when he came into witness box.
The act of Mahabir in arranging for a taxi
and taking the dead body of Indira at the dead hour of the night to Kamarganj
Ghat at a distance of 21 miles clearly indicates his desire to surreptitiously
remove the dead body and throw it at a place from which it would not be
recovered. It is significant in this connection to observe, that Monghyr is at
a distance of only five or six miles from Jamalpur while Lal Darwaza burning
ghat is at a distance of nine miles from Jamalpur. Both Lal Darwaza burning
ghat and Monghyr are on river bank. The fact that the dead body 652 was taken
to a much more distant place like Kamarganj Ghat which is 21 miles away tends
to show that Mahabir wanted that the place where the dead body was thrown should
not get known to others. The tying of bag containing bricks to the dead body
betrays further anxiety to prevent the floating and consequent detection of the
According to the defence version, Dasrath
accused, who is husband of Indira, was not present in Nayagaon and was away to
Darbhanga at the time of the death of Indira. Dasrath even was not sent for
before the dead body was disposed of.
The stealthy removal of the dead body of
Indira at a late hour of the night and the undue haste with which the body of
Indira was thrown in the river at a distance of 21 miles from Nayagaon is a
gravely incriminating circumstance and no plausible explanation has been
furnished by Mahabir for this abnormal conduct.
As regards the contention that the death of
Indira was natural and not homicidal, we have already mentioned above that both
her lungs were found to be congested. Heart was normal and. empty. Dr. Prasad
(PW 21), who performed the post mortem examination on the dead body, was
declared hostile on the request of the public prosecutor. In answer to a
further question, Dr. Prasad stated that the death of Indira might have been a
normal death Dr. Prasad ruled out an asphyxial death or death by morphine
poisoning because, according to him, there was no indication of any of the
following characteristics which are to be found in the case of such a death :
"(a) Right lung is full of blood and
left is empty.
(b) Lividity of faces, fingers and nails.
(c) Congestion of the brain.
(d) Froth or blood froth in the trachea, (e)
Punctiform ecchymosis in the lungs with congestion of lungs." The
prosecution also examined Dr. Kamleshwar Singh police surgeon (PW 24).
According to this witness, he perused the post mortem report and the Chemical
Examiner's report. The witness added : "In my view I cannot form any
opinion for the cause of death except that death had resulted due to
respiratory failure. Asphyxia is the technical term for respiratory failure.
Poisoning may be one of the causes of respiratory failure". Dr. Kamleshwar
H Singh expressed his agreement with Dr. Prasad regarding the characteristics
of asphyxial death.
653 The trial court and the High Court in the
light of the evidence on record, were of the opinion that the death of Indira
by morphine poisoning could not be ruled out.
According to Taylor's Principles and Practice
of Medical Jurisprudence, vol. II, Twelfth Edition, page 199, poison can be
administered not only orally but also hypodermically or intravascularly with
the help of a syringe. As there was no eye witness of the occurrence, the court
should not, in our opinion, insist upon evidence regarding the exact manner in
which the death of Indira was caused. It has to be borne in mind in this
context that Mahabir accused was responsible for the removal of the dead body
immediately after the death of Indira and the same remaind submerged in water
for more than 24 hours' The above conduct of Mahabir accused prevented prompt
post mortem examination on the dead body of Indira. On the material it can be
said that there were some features like the congestion of both the lungs, the
kidney, the liver and the spleen of Indira which, according to Dr.
Kameshwar Singh, were indicative of death by
respiratory failure and the same could be caused by poisoning. The fact that
the heart of the deceased at the time of post mortem examination was found to
be empty would not rule out asphyxial death as a result of poisoning. According
to observations on page 125 of Modi's Medical Jurisprudence and Toxicology.
Seventeenth Edition, in many cases of asphyxial deaths both the sides of the
heart) are found to be full if examined soon after death but after rigor mortis
has set in.
the heart is found contracted and empty.
Reference has been made by Mr. Chari to report dated December 23, 1963 of the
Chemical Examiner, according to whom no poison could be detected in the viscera
of Indira deceased. This circumstance would not, in our opinion, militate
against the conclusion that the death of the deceased was due to poisoning.
There are several poisons, particularly of the synthetic hypnotics and
vegetable alkaloids groups, which do not leave any characteristic signs as can
be noticed on post mortem examination. We may in this context refer to the
following observations on page 477 of the above mentioned book by Modi:
"It is quite possible that a person may
die from the effects of a poison, and yet none may be found in the body after
death, if the whole of the poison has disappeared from the lungs by
evaporation, or has been removed from the stomach and intestines by vomiting
and purging, and after absorption has been detoxified, conjugated and
eliminated from the system by the kidneys and other. channels.
Certain vegetable poisons may not be detected
in the viscera, as they have no reliable tests, while some organic poisons,
especially the alkaloids and glucosides, may, by oxidation during life or by
putrefacti on after death, be split up into other substances which have no 654
characteristic reactions sufficient for their identification." Similar
view has been expressed by Lambert in his book "The Medico-Legal Post
Mortem in India". We may also in this context refer to the book
"Legal Medicine Pathology and Toxicology" by Conzales and others,
Second Edition, wherein it is. stated on page 847 "The postmortem
appearances in cases of morphine poisoning are not particularly characteristic.
There is a congestion of the viscera, cyanosis and abundant dark fluid blood.
When crude opium is taken by mouth the stomach may contain fragments of poppy,
but nothing characteristic is found if morphine, is ingested." The
circumstances of the present case taken in their entirety clearly point to the
conclusion that the death of Indira was not natural but was due to foul-play.
In a number of cases where the deceased dies as a result of poisoning, it is
difficult to successfully isolate the poison and recognize it. Lack of positive
evidence in this respect would not result in throwing out the entire
prosecution case if the other circumstances clearly point to the guilt of the
accused. Reference in this context may be made to the following observations of
Hidayatullah J. (as he then was) who spoke for the majority in the case of
Anant Chintaman Lagu v. The State of Bombay(1) "A case of murder by
administration of poison is almost always one of secrecy. The poisoner seldom
takes another into his confidence, and his preparations to the commission of
the offence are also secret. He watches his opportunity and administers the
poison in a manner calculated to. avoid its detection.
The greater his knowledge of poisons, the
greater the secrecy, and consequently the greater the difficulty of proving the
case against him. What assistance a man of science can give he gives, but it is
too much to say that the guilt of the accused must, in all cases, be
demonstrated by the isolation of the poison, though in a case where there is
nothing else such a course would be incumbent upon the prosecution. There are
various factors which militate against a successful isolation of the poison and
The discovery of the poison can only take
place either through a post mortem examination of the internal organs or by
chemical analysis. Often enough, the diagnosis of a poison is aided by the
information which may be furnished by relatives and friends as to the symptoms
found on the victini. if the course of poison has taken long and to hers (1)
 2 S.C.R.
655 have had an opportunity of watching its
effect. Where, however, the poison is administered in secrecy and the victim is
rendered unconscious effectively, there is nothing to show how the
deterioration in the, condition of the victim tookplace and if not poison but
disease is suspected, the diagnosis of poisoning may be rendered
difficult." Reliance in the above context was placed in the cited case on
the books on medical jurisprudence by different authors wherein it has been
stated that the pathologist's part in the diagnosis of poisoning is secondary
and that several poisons particularly of the synthetics hypnotics and vegetable
alkalodis groups do not leave any characteristic signs which can be noticed on
post mortem. examination. The following dictum was laid down in the case:
"The cases of this Court which were
decided, proceeded upon their own facts, and though the three propositions must
be kept in mind always, the sufficiency of the evidence, direct or
circumstantial, to establish murder by poisoning will depend on the facts of
each case. If the evidence in a particular case does not justify the. inference
that death is the result of poisoning because of the failure of the prosecution
to prove the fact satisfactorily, either directly or by circumstantial
evidence, then the benefit of the doubt will have to be given to the accused
person. But if circumstantial evidence, in the absence of direct proof of the
three elements, is so decisive that the Court can unhesitatingly hold that
death was a result of administration of poison (though not detected) and that
the poison must have been administered by the accused person, then the
conviction can be rested on it." The case against Mahabir accused, in our
opinion, is covered by the latter part of the above observation. We, therefore,
find no cogent ground to interfere with the findings of the two courts that the
death of the deceased was not natural but homicidal.
Reference has been made by Mr. Chari to the
case of State Government, Madhya Pradesh v. Ramkrishna Ganpatrao Limsey and
Ors. (1) wherein this Court dealt with an appeal against acquittal and observed
that the exercise: of extra-,ordinary jurisdiction under Article 136 of the
Constitution is not justifiable in criminal cases unless exceptional and
special circumstances are shown to exist or that substantial and grave
injustice has been done. The above observations are hardly of any assistance,
to the appellant. The other observation in that case relating to speculation in
the absence of any material were made in the light of the facts of that (1)
A.I.R. 1954 S.C. 20.
656 case and as there is no parallel between
the facts of the two cases, not much help can be derived from the cited case.
The suggestion put forth on behalf of the
accused that Indira ,deceased might have died due to vagal inhibition as a
result of menstural trouble or diarrhoea cannot be accepted. Had the death of
Indira been natural because of some sudden disease and not homicidal, Mahabir
accused would not have acted in the manner he did for the stealthy disposal of,
the dead body at night by throwing it in the river at a far off place without
informing her father or even his own son about the death. The entire conduct
.of Mahabir is inexplicable On any rational ground and is consistent only with
We may now deal with the case of Dasrath
accused. According to the prosecution case, Dasrath was present in his house in
Jamalpur on the night of occurrence. Dasrath, however, has ,denied this
allegation and has stated that he was away to Darbhanga during those days.
There is no reliable evidence to show that Dasrath was present in the house on
the night in question. Reliance has been placed by the prosecution on the
testimony of Shiban Mandal (PW 8) and Mushahru Mandal (PW 15) who .have deposed
that they saw Dasrath reading a book near the dispensary room of his house on
the morning of September 18, 1963. Both these witnesses are related to each
other. Shiban ,did not make any statement to the police till September 22,
1963. The fact that Shiban kept quiet for four days and made statement to the
police after four days would show that not much reliance can be placed upon his
testimony. Mushahru on his own testimony has been involved in litigation with
Mahabir, father of Dasrath.
Mahabir also got the house of Mushahru
attached in a suit filed against him. As such, it is not safe to rely upon the
testimony of Mushahru also.
It may be mentioned that, according to the
confessional statement of Mahadeo, which was recorded by Shri Rastogi
magistrate on September 21, 1963 and upon which reliance was placed by the
prosecution, no one was present in the house when Mahabir took Mahadeo inside
the house to bring out the dead body of Indira for being placed in the taxi on
the, night of occurrence. The confessional statement of Mahadeo thus rules out
the presence of Dasrath accused at his house on the fateful night.
The fact that Dasrath was not marked present
in his hostel from September 14 till September 19, 1963 would not necessarily
show that he was present in his house in Jamalpur on the night of September 17,
1963. According to Dasrath, he was in those days staying with a relative Shri
Ram Lakhan Bhagat Advocate as Shri Bhagat's son was having typhoid. The fact
that Dasrath did not 657 adduce evidence in support of his version would not
lead to the conclusion that he was present at his house in Jamalpur on the
night of occurrence.
Reference has also been made to some letters
between Dasrath and a girl named Madhuri in order to show their intimacy.
This circumstance would not warrant an
inference of the guilt of Dasrath when the other evidence is not sufficient to
connect him with the crime. The same remarks would apply to letter dated March
29, 1962 which Dasrath wrote to Baijnath in order to re. mind him of his
promise to pay Rs.
2,500 for further education to Dasrath. It
may be mentioned that a subsequent letter dated July 6, 1962 of Dasrath to
Baijnath shows his attachment toward,,; his wife Indira deceased.
Coming to the case of Kasim, we find that
there is no reliable evidence as may show that Kasim was present at the house
of Mahabir on the night of occurrence and took part in the disposal of the dead
body of Indira. Reliance was placed by the prosecution upon the statements
alleged to have been made by Kasim and Mahadeo accused at the police station in
the presence of Baijnath PW after Baijnath had lodged report at the police
station. Such statements are legally not admissible in evidence and cannot be
used as substantive evidence. According to section 162 of the Code of Criminal
Procedure, no statement made by any person to a police officer in the course of
an investigation shall be signed by the person making it or used for any
purpose at any enquiry or trial in respect of any offence under investigation
at the time when such statement was made. The only exception to the above rule
is mentioned in the proviso to that section. According to the Proviso, when any
witness is called for the prosecution in the enquiry or trial, any part of his
statement, if duly proved, may be used by the accused and with the permission
of the court by the prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act and when any part of such
treatement is so used, any part thereof may also be used in the re-examination
of such witness for the purpose only of explaining any matter referred to in his
cross-examination. The above rule is, however, not applicable to statements
falling within the provisions of clause 1 of section 32 of the Indian Evidence
Act or to affect the provisions of section 27 of that Act. It is also well
established that the bar of inadmissibility operates not only on statements of
witnesses but also on those of the accused [see Narayan Swami v. Emperor, (1)].
Lord Atkin, in that case, while dealing with section 162 of the, Code of
Criminal Procedure, observed "Then follows the Section in question which
is drawn in the same general way relating to "any person." That (1)
 P.C. 47.
658 the words in their ordinary meaning would
include any person though he may thereafter be accused seems plain.
Investigation into crime often includes the examination of a n umber of persons
none of whom or all of whom may be suspected at the time. The first words of
the Section prohibiting the statement if recorded from being signed must apply
to all the statements made at the time and must therefore apply to a statement
made by a person possibly not then even suspected but eventually accused."
Reference may also be made to section 26 of the Indian Evidence Act, according
to which no confession made by any person whilst he is in the custody of a
police officer, unless it be made in. the immediate presence of a Magistrate,
shall be proved against such person. There is nothing in the present case to
show that the statements which were made by Kasim and Mahadeo accused on
September 18, 1963 at the police station in the presence of Baijnath resulted
in the discovery of any incriminating material as may make them admissible,
under section 27 of the Indian Evidence Act. As such, the aforesaid statements
must be excluded from consideration.
We, therefore, axe of the opinion that no
case has been proved against Dasrath and Kasim accused.
As regards Mahadeo accused, we find that it
is the case of the prosecution and this fact is also admitted by Mahadeo
accused in his statement under section 342 of the Code of Criminal Procedure
that he was one of those who carried the dead body of Indira from the house of
Mahabir to the taxi and thereafter went with the dead body in the taxi to
Kamarganj Ghat. The dead body also thrown in the Ganges by Mahadeo. Mahadeo further
admits that he pointed out the dead body to the police and brought it out of
The circumstances in which the death of
Indira took place and the surreptitious manner in which 'her dead body was
removed at dead of night from Mahabir's house to Kamarganj Ghat go to show that
Mahadeo was not unaware of the fact that Indira's death was not natural and had
been brought about by Mahabir. Mahadeo, in the circumstances, ,was rightly
convicted for offence under section 201 Indian Penal code for causing the
disappearance of the dead body with a view to screen the murderer from legal
punishments As both Dasrath and Kasim are being acquitted, the charge under
section 120B Indian Penal Code against Mahabir for conspiracy with Dasrath to
murder Indira and against Mahadeo for conspiracy with Kasim for causing
disappearance of dead body ,of Indira must fail.
659 The result is that appeal of Dasrath and
Kasim is allowed.
Their conviction is set aside and they are
acquitted. The conviction of Mahabir and Mahadeo for offences under section
120B Indian Penal Code is set aside. The conviction of Mahabir for offences
under sections 302 and 201 Indian Penal Code as well as the sentence on that
scare is maintained.
Likewise, the conviction and sentence of
Mahadeo for offence under section 201 Indian Penal Code is maintained. The
appeal of Mahabir and Mahadeo to this extent is dismissed.
S.C. Appeal dismissed.