Sharad Birdhi Chand Sarda Vs. State of
Maharashtra [1984] INSC 118 (17 July 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)
CITATION: 1984 AIR 1622 1985 SCR (1) 88 1984
SCC (4) 116 1984 SCALE (2)445
CITATOR INFO:
D 1988 SC1101 (22) F 1990 SC 79 (21) R 1991
SC 917 (37,42,50) R 1991 SC1842 (6)
ACT:
Constitution of India, 1950, Article
136-Interference by the Supreme Court with the concurrent findings of fact of
the courts below, normally not permissible-Special circumstance like errors of
law, violation of well established principles of criminal jurisprudence etc.
would be necessary for interference.
Evidence-Circumstantial evidence, nature and
proof of- Conditions precedent for conviction-Evidence Act Section 3 (Act 1 of
1972).
Evidence-Circumstantial evidence-Onus of
proof- Prosecution must prove every link of the chain and complete
chain-Infirmity or lacuna in the prosecution cannot be cured by false defence
or plea-A person cannot be convicted on pure moral conviction-False explanation
can be used as additional link to fortify the prosecution case, subject to
satisfaction of certain conditions.
Doctrine of Proximity, concept of, nature and
limits explained-Admissibility of statements and dying declarations under
sections 8, 32 of the Evidence Act.
Murder by administration of
poison-Circumstances that should be looked into before a conviction-Penal Code
(Act XLV of 1860) Section 300.
Evidence, appreciation of-Evidence of
interested witnesses, especially that of close relatives of the deceased-Duty
of the Court-Evidence Act (Act I of 1872) Section 3.
Benefit of doubt-When two views are possible,
one leading to the guilt of the accused and the other leading to his innocence,
the benefit of doubt should go to the accused entitling his acquittal-Evidence
Act (Act I of 1872) Sections 101-104.
Examination of the accused under Section 313
of Crl.
P.C.-Circumstances not put to the accused to
explain, cannot be considered for conviction-Code of Criminal Procedure, 1973
(Act II of 1974) Section 313.
HEADNOTE:
The appellant, Rameshwar, Birdhichand Sarda,
Ramvilas Rambagas Sarda, were accused 1, 2 and 3 respectively in Sessions Case
No. 203 of 1982 on the file of the Additional Sessions Judge, Pune. The appellant
and the second accused are the sons of one Birdhichand of Pune whose family has
a cloth business. In addition, the appellant, a graduate in Chemical
Engineering had 89 started a chemical factory at Bhosari, a suburb of Pune. The
third accused is uncle of the appellant and the second accused. The appellant
is the husband of Manjushree alias Manju while the second accused is the
husband of Anuradha (P.W. 35). Birdhichand's family has its residential house
at Ravivar Peth in Pune and owns a flat in a building known as Takshasheela
Apartments in Mukund Nagar area of Pune. All the three accused were charged for
the alleged offence of murder by poisoning on the night of 11/12.6.1982 of
Manju the newly married wife of the first accused and the appellant herein under
section 302 I.P.C. read with section 120B. Accused No, 3 was also charged under
section 201 read with Section 120B I.P.C. The whole case vested on the
circumstantial evidence based on certain letters alleged to have been written
by the deceased to some of the witnesses and other statements of the deceased
to them and the medical report. On an appreciation of the evidence the trial
court found all the three accused guilty as charged, convicted them accordingly
and sentenced the appellant to death under s.302 I.P.C. and all the three
accused to rigorous imprisonment for two years and a fine of Rs. 2,000 each
under s.120B I.P.C. but did not award any sentence under s.201 read with
s.120B.
The appellant and the other two accused file
Criminal Appeal No. 265/83 against their conviction and the sentences awarded
to them. The State filed a Criminal Revision application for enhancement of the
sentence awarded to accused 2 and 3. The appeal as well as Criminal Revision
application was heard along with confirmation case No. 3 of 1983 together by
the Division Bench of the Bombay High Court which allowed the appellants appeal
in part regarding his conviction and sentence under s.120B I.P.C. but confirmed
his conviction and sentence of death awarded under section 302 I.P.C., allowed
the appeal of accused 2 and 3 in full and acquitted them and dismissed the
Criminal Revision Application. Hence the appellant alone has come up before the
Supreme Court after obtaining Special Leave.
Allowing the appeal, the Court ^ HELD: (Per
Fazal Ali, J.).
1:1. Normally, the Supreme Court does not
interfere with the concurrent findings of the fact of the courts below in the
absence of very special circumstances or gross errors of law committed by the
High Court. But, where the High Court ignores or overlooks the crying
circumstance and proved facts, or violates and misapplies the well established
principles of criminal jurisprudence or decision rendered by this Court on
appreciation of circumstantial evidence and refuses to give benefit of doubt to
the accused despite facts apparent on the face of the record or on its own
finding or tries to gloss over them without giving any reasonable explanation
or commits errors of law apparent on the face of the record which results in
serious and substantial miscarriage of justice to the accused, it is the duty
of this Court to step in and correct the legally erroneous decision of the High
Court. [174E-G] 1:2. Suspicion, however, great it may be, cannot take the place
of legal proof. A moral conviction however, strong or genuine cannot amount to
a legal conviction supportable in law. [174H] 1:3. The well established rule of
criminal justice is 'fouler the crime higher the proof'. In the instant case,
the life and liberty of a subject was at 90 stake. As the accused was given a
capital sentence a very careful cautious and meticulous approach necessarily
had to be made by the Court. [175A] 2:1. The Indian law on the question of the
nature and scope of dying declaration has made a distinct departure from the
English law where only the statement which directly relate to the cause of
death are admissible. The second part of cl.(1) of s.32, viz, "the
circumstances of the transaction which resulted in his death, in cases in which
the cause of that person's death comes into question" is not to be found
in the English Law. [107F-G] 2:2. From a review of the various authorities of
the Courts and the clear language of s.32(1) of Evidence Act, the following
propositions emerge: [108F] (1) Section 32 is an exception to the rule of
hearsay and makes admissible the statement of a person who dies.
whether the death is a homicide or a suicide,
provided the statement relates to the cause of death, or relates to
circumstances leading to the death. In this respect, Indian Evidence Act, in
view of the peculiar conditions of our society and the diverse nature and
character of our people, has thought it necessary to widen the sphere of s.32
to avoid injustice. [108G-H] (2) The test of proximity cannot be too literally
construed and practically reduced to a cut-and-dried formula of universal
application so as to be confined in a straitjacket. Distance of time would
depend or very with the circumstances of each case. For instance, where death
is a logical clumination of a continuous drama long in process and is, as it
were, a finale of the story, the statement regarding each step directly
connected with the end of the drama would be admissible because the entire
statement would have to be read as on organic whole and not torn from the
context. Sometimes statements relevant to or furnishing an immediate motive may
also be admissible as being a part of the transaction of death. It is manifest
that all these statements come to light only after the death of the deceased
who speaks from death. For instance, where the death takes place within a very
short time of the marriage or the distance of time is not spread over more than
3-4 months the statements may be admissible under s.32. [109B-D] (3) The second
part of cl.1 of s.32 is yet another exception to the rule that in criminal law
the evidence of a person who was not being subjected to or given an opportunity
of being cross-examined by the accused, would be valueless because the place of
cross-examination is taken by the solemnity and sanctity of oath for the simple
reason that a person on the verge of death is not likely to make a false
statement unless there is strong evidence to show that the statement was
secured either by prompting or tutoring.
[109E-F] (4) Section 32 does not speak of
homicide alone but includes suicide also, hence all the circumstance which may
be relevant to prove a case of homicide would be equally relevant to prove a
case of suicide. [109-G] (5) Where the main evidence consists of statements and
letters written by the deceased which are directly connected with or related to
her death and 91 which reveal a tell-tale story, the said statement would
clearly fell within the four corners of s.32 and, therefore, admissible. The
distance of time alone in such cases would not make the statement irrelevant.
[109H] Hanumant v. State of Madhya Pradesh [1952] S.C.R. 1091;
Dharambir Singh v. State of Punjab Criminal
Appeal No. 98 of 1958 decided on 4.11.58 =AIR 1958 SC 152; Ratan Gond v. The
State of Bihar [1959] SCR 1336; Pakala Narayana Swami v.
Emperor AIR 1939 PC 47; Shiv Kumar & Ors
v. The State of Uttar Pradesh Crl. Appeal No. 55 of 1966 decided on 29.7.66
=(1966) Crl. Appeal SC 281; and Protima Dutta & Anr. v. The State, C.W.N.
713 referred to.
Manohar Lal & Ors. v. State of Punjab
[1981] Cr.L.J, 1373; Onkar v. State of Madhya Pradesh [1974] Crl. L.J.
1200; Allijan Munshi v. The State AIR 1960
Bom. 290;
Chinnavalayan v. State of Madras [1959]
M.L.J. 246;
Rajindera Kumar v. The State AIR 1960 Punjab
310; and State v. Kanchan Singh & Anr. AIR 1954 All. 153. approved.
Gokul Chandra Chatterjee v. The State, AIR
1950 Cal.
306, overruled.
3:1. It is well settled that the prosecution
must stand or fall on its own legs and it cannot derive any strength from the
weakness of the defence. This is trite law.
However, where various links in a chain are
in themselves complete, then a false plea or a false defence may be called into
aid only to lend assurance to the Court. In other words before using the
additional link it must be proved that all the links in the chain are complete
and do not suffer from any infirmity. It is not the law that where there is any
infirmity or lacuna in the prosecution case the same could be cured or supplied
by a false defence or a plea which is not accepted by a Court. [162C-E] 3:2.
Before a false explanation can be used as additional link, the following
essential conditions must be satisfied: [165E]
1. Various links in the chain of evidence led
by the prosecution have been satisfactorily proved; [165E]
2. The said circumstance point to the guilt
of the accused with reasonable definiteness and; [165G]
3. The circumstances is in proximity to the
time and situation.[165H] If these conditions are fulfilled only then a Court
can use a false explanation or a false defence as an additional link to lend as
assurance to the Court and not otherwise. On the facts and circumstances of the
present case this does not appear to be such a case. There is a vital
difference between an incomplete chain of circumstances and a circumstance,
which, after the chain is complete, is added to it merely to reinforce the
conclusion of the court. Where the prosecution is enable to prove any of the
essential principles laid down in Hanumant's case the High Court cannot supply the
weakness or the lacuna by taking aid of or recourse to a false defence or a
false plea. [166A; 166D-E] 92 3:3. Before a case against an accused vesting on
circumstantial evidence can be said to be fully established the following
conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953]
SCR 1091. [163C]
1. The circumstances from which the
conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be
consistent with the hypothesis of guilt and the accused, that is to say, they
should not be explainable on any other hypothesis except that the accused is
guilty; [163G]
3. The circumstances should be of a
conclusive nature and tendency;[163G]
4. They should exclude every possible
hypothesis except the one to be proved; and [163H]
5. There must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all human probability
the act must have been done by the accused. [164B] These five golden principles
constitute the panchsheel of the proof of a case based on circumstantial
evidence and in the absence of a corpus deliciti. [164B] Hanumant v. The State
of Madhya Pradesh [1952] SCR 1091; Tufail (Alias) Simmi v. State of Uttar
Pradesh [1969] 3 SCC 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656;
and Shivaji Sahabrao Babode & Anr. v.
State of Maharashtra [1973] 2 SCC 793 referred to.
3:4. The cardinal principle of criminal
jurisprudence is that a case can be said to be proved only when there is
certain and explicit evidence and no pure moral conviction.
[164F] The King v. Horry [1952] N.Z.L.R. III
quoted with approval.
Hanumant v. State of M.P. [1952] S.C.R. 1091;
Dharambir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided
on 4.11.58); Chandrakant Nyslchand Seth v. The State of Bombay (Criminal Appeal
No. 120 of 1957 decided on 19.2.58) Tufail (alias) Simmi v. State of U.P.
[1969] 3 S.C.C. 198; Ramgopal v. State of Maharashtra AIR 1972 SC 656; Naseem
Ahmed v. Delhi Administration [1974] 2 SCR 694/696 Mohan Lal Pangasa v. State
of U.P. A.I.R. 1974 SC 1144/46; Shankarlal Gyarasilal Dixit v State of
Maharashtra [1981] 2 SCR 384/390; and M.C. Agarwal v. State of Maharashtra [1963]
2 SCR 405/419 referred to.
Denonandan Mishra v The State of Bihar [1955]
2 SCR 570/582 distinguished.
Some of the statements which have a causal
connection with the death of Manju or the circumstances leading to her death
are undoubtedly admissible 93 under section 32 of the Evidence Act but other
statements which do not bear any proximity with the death or if at all very
remotely and indirectly connected with the death would not be admissible.
[121H] 3.5. In view of the close relationship and affection any person in the
position of the witness would naturally have a tendency to exaggerate or add
facts which may not have been stated to them at all. This is human phychology
and no one can help it. Not that this is done consciously but even unconsciously
the love and affection for the deceased would create a phychological hatred
against the supposed murderer, the court has to examine the evidence of
interested witnesses with very great care and caution. Even if the witnesses
were speaking a part of the truth or perhaps the whole of it they would be
guided by a spirit of revenge or nemesis against the accused person and in this
process certain facts which may not or could not have been stated may be
imagined to have been stated unconsciously by the witnesses in order to see
that the offender is punished.
[122C-D] 3.6. A close and careful scrutiny of
the evidence of the witness (PWs 2, 3, 4 and 5) who are close relatives or
deceased and conspicuously reveals a story which is quite different from the
one spelt out from the letters (Exhs. 30, 32 and 33). In fact, the letters have
a different tale to tell particularly in respect of certain matters. They are:
[138D] (i) There is absolutely no reference
to suicidal pact or the circumstances leading to the same; (ii) There is no
reference even to Ujvala and her illcit relations with the appellant; (iii)
There is no mention of the fact that the deceased was not at all willing to go
to Pune and that she was sent by force; (iv) The complaints made in the letters
are confined to ill-treatment, loneliness, neglect and anger of the husband but
no apprehension has been expressed in any of the letters that the deceased
expected imminent danger to her life from her husband; (v) In fact, in the
letters she had asked her sister and friend not to disclose her and plight to
her parents but while narrating the facts to her parents, she herself violated
the said emotional promise which appears to be too good to be true and an afterthought
added to strengthen the prosecution case; and (vi) If there is anything
inherent in the letters it is that because of her miserable existence and gross
ill-treatment by her husband, Manju might have herself decided to end her life,
rather than bother her parents. Therefore, these witnesses are not totally
dependable so as to exclude the possibility of suicide and to come to an
irresistible inference, that it was the appellant who had murdered the
deceased. Though a good part of the evidence is undoubtedly admissible, its
probative value is precious little in view of the several improbabilities,
[138E-H; 139A-B] 4.1. It is well-settled that where on the evidence two
possibilities are available or open one which goes in favour of the prosecution
and the other which benefits an accused, the accused is undoubtedly entitled to
the benefit of doubt.
[166H] 94 In the instant case, the evidence
clearly shows that two views are possible-one pointing to the guilt of the
accused and the other leading to his innocence. It may be very likely that the
appellant may have administered the poison (potassium cyanide) to Manju but at
the same time a fair possibility that she herself committed suicide cannot be
safely excluded or eliminated. Hence, on this ground alone the appellant is
entitled to the benefit of doubt resulting in his acquittal. [168B] 4.2. In the
cases of murder by administering poison, the Court must carefully scan the
evidence and determine the four important circumstances which alone can justify
the conviction: (1) There is a clear motive for an accused to administer poison
to the deceased; (ii) that the deceased died of poison said to have been
administered; (iii) that the accused had the poison in his possession; and (iv)
that he had an opportunity to administer the poison to the accused. [167F-H]
4.3. In the instant case, taking an overall picture on this part of the
prosecution case the position seems to be as follows: [150D]
1. If the accused wanted to give poison while
Manju was wide awake, she would have put up stiffest possible resistance as any
other person in her position would have done. Dr. Banerjee in his postmortem
report has not found any mark of violence or resistance even if she was
overpowered by the appellant she would have shouted and cried and attracted
persons from the neighbouring flats which would have been a great risk having
regard to the fact that some of the inmates of the house had come only a short-
while before the appellant. [150E-F]
2. Another possibility which cannot be ruled
out is that potassium cyanide may have been given to Manju in a glass of water
if she happened to ask for it. But if this was so, she being a chemist herself
would have at once suspected some foul play and once her suspicion would have
arisen it would be very difficult for the appellant to murder her. [150G]
3. The third possibility is that as Manju had
returned pretty late to the flat and she went to sleep even before the arrival
of the appellant and then he must have tried forcibly to administer the poison
by the process of mechanical suffociation, in which case alone the deceased
could not have been in a position to offer any resistance but this opinion of
doctor, has not been accepted by the High Court, after a very elaborate
consideration and discussion of the evidence, the circumstances and the medical
authorities, found that the opinion of the doctor that Manju died by mechanical
suffocation had not been proved or at any rate it is not safe to rely on such
evidence. [150H; 151A-C]
4. The other possibility that may be thought
of is that Manju died a natural death. This also is eliminated in view of the
report of the Chemical Examiner as confirmed by the postmortem that the
deceased died as a result of administration of potassium cyanide. [152B] 95
5. The only other reasonable possibility that
remains is that as the deceased was fed up with the maltreatment by her
husband, in a combined spirit of revenge and hostility after entering the flat
she herself took potassium cyanide and lay limp and lifeless. When the
appellant entered the room he must have thought that as she was sleeping she
need not be disturbed but when he found that there was no movement in the body
after an hour his suspicion was roused and therefore he called his brother from
the adjacent flat to send for Dr. Lodha. [152C-D] In these circumstances, it
cannot be said that a reasonable possibility of the deceased having committed
suicide as alleged by the defence cannot be safely ruled out or eliminated. It
is clear that the circumstances of the appellant having been last seen with the
deceased and has administered the opinion has not been proved conclusively so
as to raise an irresistible inference that Manju's death was a case of blatant
homicide. [152E-F] Further, in a matter of this magnitude it would be quite
natural for the members of the appellants family to send for their own family
doctor who was fully conversant with the ailment of every member of the family.
In these circumstances there was nothing wrong if the appellant and his brother
went to a distance of one and a half kilometer to get. Dr. Lodha. Secondly, Dr.
Shrikant Kelkar was a skin specialist whereas Dr. (Mrs,) Anjali Kelkar was a
Paediatrician and the appellant may have genuinely believed that as they
belonged to different branches, they were not at all suitable to deal with such
a serious case. The High Court was, therefore, wrong in treating this
circumstance namely not calling the two Doctors in the flat, as an
incriminating conduct of the appellant. [157B-D] The circumstances which were
not put to the appellant in his examination under S. 313 of the Criminal
Procedure Code must be completely excluded from considerating because the
appellant did not have any chance to explain them. Apart from the aforesaid
comments there is one vital defect in some of the circumstances relied upon by
the High Court namely circumstances Nos. 4, 5, 6, 8, 9, 11, 12,13, 16 and
17. [160B; 159B-C] Fateh Singh Bhagat Singh
v. State of Madhaya Pradesh AIR 1953 SCR 468 ; Shamu Balu Chagule v. State of
Maharashtra 1976 1 SCC 438 and; Harijan Meha Jesha v. State of Gujarat AIR 1979
SC 1566 referred to.
6. Viewing the entire evidence, the
circumstance of the case and the interpretation of the decisions of the Supreme
Court the legal and factual position are (i) that the five golden principles
enunciated by the Supreme Court in Hanumant v. The State of M.P. [1952] SCR
1091 have not been satisfied in the instant case. As a logical corollary, it
follows that cannot be held that the act of the accused cannot be explained on
any other hypothesis except the guilt of the appellant nor can it be said that
in all human probability, the accused had committed the murder of Manju.
In other words, the prosecution has not
fulfilled the essential requirements of a criminal case which rests purely on
circumstantial evidence; (ii) From the recital in the letters Ex. P30, Ex-P32
and Ex-P33 it can be safely held 96 that there was a clear possibility and a
tendency on the part of the deceased Manju to commit suicide due to desperation
and frustration. She seems to be tried of her married life, but she still hoped
against hope that things might improve. She solemnly believed that her holy
union with her husband bring health and happiness to her but unfortunately it
seems to have ended in a melancholy marriage which left her so lonely and
frustrated so much of emotional disorder resulting from frustration and
pessimism that she was forced to end her life. There can be no doubt that Manju
was not only a sensitive and sentimental women was extremely impressionate and
the letters show that a constant conflict between her mind and body was going
on and unfortunately the circumstances which came into existence hastened her
end. People with such a psychotic philosophy or bent of mind always dream of an
ideal and if the said ideals fails, the failure drives them to end their life,
for they feel that no charm is left in their life; (iii) The prosecution has
miserably failed to prove one of the most essential ingredients of a case of
death caused by administration of poison i.e.. possession with the accused
(either by direct or circumstantial evidence) and on this ground alone the
prosecution must fails. (iv) That is appreciating the evidence, the High Court
has clearly misdirected itself on many points, and has thus committed a gross
error of law; (iv) That the High Court has relied upon decisions of this Court
which are either in applicable or which, on closer examination, do not support
the view of the High Court being clearly distinguishable; (vi) That the High
Court has taken a completely wrong view of law in holding that even though the
prosecution may suffer from serious infirmities it could be reinforced by
additional link in the nature of false defence in order to supply the lacuna
and has thus committed a fundamental error or law; (vii) That the High Court
has not only misappreciated the evidence but has completely overlooked the well
established principles of law and has merely tried to accept the prosecution
case based on tenterhooks and slender tits and bits; (viii) It is wholly unsafe
to rely on that part of the evidence of Dr. Banerjee (PW 33) which shows that
poison was forcibly administered by the process of mechanical suffociation;
(ix) There is no manifest defect in the investigation made by the police which
appears to be honest and careful. A proof positive of this fact is that even
though Rameshwar Birdichand and other members of his family who had practically
no role to play had been arraigned as accused but they had to be acquitted by
the High Court for lack of legal evidence; (x) That in view of the findings two
views are clearly possible in the present case, the question of defence being
false does not arise. [172E-H; 173A-H; 174A-D] Per Varadarajan, J. (Per contra
on facts.) 1:1. The three letters Exh. P 30, Exh. P 32 and Exh. P 33 and the
oral evidence of PWs. 2, 3, 5, 6, and 20 are inadmissible in evidence under
section 32(1) of the Evidence Act. There is no acceptable evidence on record to
show that either the appellant or his parents ill-treated the desceased Manju
and that the appellant had any illicit intimacy with PW 37 Ujvala. The alleged
oral statement of Manju and what she has stated in her letters Exh. 30, 32 and
33 may relate to matters perhaps having a very remote bearing on the cause or
the circumstances of her death.
Those circumstances do not have any proximate
97 relation to the actual occurrence resulting in her death due to potassium
cyanide poison though for instance in the case of prolonged poisoning they may
relates to dates considerably distant from the date of the actual fatal dose.
They are general impressions of Manju
indicating fear or suspicion, whether of a particular individual or otherwise
and not directly related to the occasion or her death. It is not the case of
the prosecution either that the present case is one of porlonged poisoning.
[187B; 190D-F] 1: 2. The fact that the High court has rejected the case of the
prosecution based on Dr. Banerjee's report and evidence that it was also a case
of mechanical suffocation is not one that could be taken into consideration as
a mitigating circumstance in judging the conduct of the doctor who had
conducted the autopsy in a case of suspicious death.
The conduct of the doctor in making certain
later interpolations in the case of suspicious death in which the appellant has
been sentenced to death by the two courts below deserves serious condemnations.
The doctor has tempered with material evidence in the case of alleged murder
may be at the instance of somebody else, ignoring the probable consequences of
his act. In these circumstances Dr.
Banerjee PW 33 is person who should not be
entrusted with any serious and responsible work such as conducting autopsy in
public interest. In this case the appellant would have gone to gallows on the
basis of the evidence of PW 33 as he would have the Court to believe it, and
the other evidence, if they had been accepted. [193D-H] 1: 3. Section 313
Criminal Procedure Code lays down that in every inquiry or trial for the
purpose of enabling the accused personally to explain any circumstance
appearing in the evidence against him, the court may at any stage without
previously warning the accused, put such questions to him as the court
considers necessary and shall, after the witnesses for the prosecution have
been examined and before he is called for his defence, question him generally
on the case. Hence the evidence on the basis on which question Nos.
25, 30, 32, and 115 have been put to the
appellant are wholly irrelevant as these questions do not relate to any
circumstance appearing in the against the appellant. The learned Additional
Sessions Judge was bound to exercise control over the evidence being tendered
in his court and to know the scope of the examination of the accused under
Section 313 Criminal Procedure Code [195A-C] Per Sabyasachi Mukharji, J.
(Concurring) Though the test of proximity cannot and should not be two
literally construed and be reduced practically to a cut- and-dried formula of
universal application, it must be emphasised that wherever it is extended
beyond the immediate, it should be explained and must be done with very great
caution and care. As a general proposition it cannot be laid down for all
purposes that for instance where the death takes place within a short time of
marriage and the distance of time is not spread over three or four months, the
statement would be admissible under Section 32 of the evidence Act. This is
always not so and cannot be so. In very exceptional circumstances such
statements may be admissible and that too not for proving the positive fact,
namely raising some doubt about the guilt of the accused [197D-F] 98
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 745 of 1983 From the Judgment and Order dated the 20th, 21st, 22nd,
23rd September 1983 of the Bombay High Court in Criminal Appeal No. 265 of 1983
with confirmation case No. 3/83.
Ram Jethmalani, M.S. Ganesh, F. N. Ranka and
Ms. Rani Jethmalani for the Appellant.
K.G. Bhagat, Addl. Solicitor General, M.N.
Shroff and U.A. Jadhavrao for the Respondent.
The following Judgments were delivered FAZAL
ALI, J. This is rather an unfortunate case where a marriage arranged and
brought about through the intervention of common friends of the families of the
bride and bridegroom though made a good start but ran into rough weather soon
thereafter. The bride, Manju, entertained high hopes and aspirations and was
not only hoping but was anxiously looking forward to a life full of mirth and
merriment, mutual love and devotion between the two spouses.
She appears to be an extremely emotional and
sensitive girl at the very behest cherished ideal dreams to be achieved after
her marriage, which was solemnised on February 11, 1982 between her and the
appellant, Sharad Birdhichand Sarda. Soon after the marriage, Manju left for
her new marital home and started residing with the appellant in Takshila
apartments at Pune. Unfortunately, however, to her utter dismay and
disappointment she found that the treatment of her husband and his parents
towards her was cruel and harsh and her cherished dreams seem to have been
shattered to pieces. Despite this shocking state of affairs she did not give in
and kept hoping against hope and being of a very noble and magnanimous nature
she was always willing to forgive and forget. As days passed by, despite her
most laudable attitude she found that "things were not what they
seem" and to quote her own words "she was treated in her husbands
house as a labourer or as an unpaid maid-servant".
She was made to do all sorts of odd jobs and
despite her protests to her husband nothing seems to have happened. Even so,
Manju had such a soft and gentle frame of mind as never to complain to her
parents-in-law, not even to her husband except sometimes. On finding things
unbearable, she did protest, and ex 99 pressed her feelings in clearest
possible terms, in a fit of utter desperation and frustration, that he hated
her. Not only this, when she narrated her woeful tale to her sister Anju in the
letters written to her (which would be dealt with in a later part of the
judgment), she took the abundant care and caution of requesting Anju not to
reveal her sad plight to her parents lest they may get extremely upset, worried
and distressed.
Ultimately, things came to such a pass that
Manju was utterly disgusted and disheartened and she thought that a point of
no-return had reached. At last, on the fateful morning of June 12,1982, i.e.,
nearly four months after her marriage, she was found dead in her bed.
As to the cause of death, there appears to be
a very serious divergence between the prosecution version and the defence case.
The positive case of the prosecution was that as the appellant was not at all
interested in her and had illicit intimacy with another girl, Ujvala, he
practically discarded his wife and when he found things to be unbearable he
murdered her between the night of June 11 and 12, 1982, and made a futile
attempt to cremate the dead body.
Ultimately, the matter was reported to the
police. On the other hand, the plea of the defence was that while there was a
strong possibility of Manju having been ill-treated and uncared for by her
husband or her in-laws, being a highly sensitive and impressionate woman she
committed suicide out of sheer depression and frustration arising from an
emotional upsurge. This is the dominant issue which falls for decision by this
Court.
Both the High Court and the trial court
rejected the theory of suicide and found that Manju was murdered by her husband
by administering her a strong dose of potassium cyanide and relied on the
Medical evidence as also that of the chemical examiner to show that it was a
case of pure and simple homicide rather than that of suicide as alleged by the
defence. The High Court while confirming the judgment of the trial court
affirmed the death sentence and hence this appeal by special leave.
Before discussing the facts of the case, it
may be mentioned that although the High Court and the trial court have gone
into meticulous and minutest matters pertaining to the circumstances leading to
the alleged murder of Manju, yet after going through the 100 judgments we feel
that the facts of the case lie within a very narrow compass.
The story of this unfortunate girl starts on
11.2.1982 when her marriage was solemnised with the appellant preceded by a
formal betrothal ceremony on 2.8.8. after the marriage, Manju, for the first
time, went to her parents' house on 22.2.82 for a very short period and
returned to Pune on 26.2.82. It is the prosecution case that on 17.3.82 the
appellant had called Manju at Pearl Hotel where he introduced her to Ujvala and
told her that she must act according to the dictates and orders of Ujvala if
she wanted to lead a comfortable life with her husband. In other words, the
suggestion was that the appellant made it clear to his wife that Ujvala was the
real mistress of the house and Manju was there only to obey her orders. After
this incident, Manju went to her parents' house on 2.4.82 and returned to Pune
on 12.4.82. This was her second visit. The third and perhaps the last visit of
Manju to her parents' house was on 25.5.82. from where she returned to Pune on
3.6.82, never to return again. The reason for her return to Pune was that her
father-in-law insisted that she should return to Pune because the betrothal
ceremony of Shobha (sister of the appellant) was going to be held on 13.6.82.
The last step in this unfortunate drama was
that Manju, accompanied by Anuradha (wife of A-2) and her children, returned to
the flat on 11.6.82 near about 11.00 p.m. Her husband was not in the apartment
at that time but it is alleged by the prosecution that he returned soon after
and administered potassium cyanide to Manju. Thereafter, the appellant went to
his brother, Rameshwar who was also living in the same flat and brought Dr.
Lodha (PW 24) who was living at a distance of 11/2 Kms from Takshila
Apartments.
At the suggestion of Dr. Lodha Dr. Gandhi (PW
25) was also called both and of them found that Manju was dead and her death
was an unnatural one and advised the body to be sent for postmortem in order to
determine the cause of death.
Ultimately, Mohan Asava (PW 30) was
approached on telephone and was informed that Manju had died at 5.30 a.m.
Subsequently, the usual investigation and the
postmortem followed which are not very germane for our purpose at present and
would be considered at the appropriate stage.
The plea of the appellant was that Manju was
not administered potassium cyanide by him but she appears to have committed 101
suicide out of sheer frustration. In order to prove his bona fide the accused
relied on the circumstances that as soon as he came to know about the death of
his wife he called two Doctors (PWs 24 & 25) and when they declared that
Manju had died an unnatural death, as the cause of death was not known, and therefore
the body had to be sent for postmortem, he immediately took steps to inform the
police. He flatly denied the allegation of the prosecution that there was any
attempt on his part to persuade Mohan Asava (PW 30) to allow the body of the
deceased to be cremated.
We might state that the High Court has
mentioned as many as 17 circumstances in order to prove that the circumstantial
evidence produced by the prosecution was complete and conclusive, Some of 13
these circumstances overlap, some are irrelevant and some cannot be taken into
consideration because they were not put to the appellant in his statement under
s. 313 of the Code of Criminal Procedure in order to explain the effect of the
Code of Criminal Procedure in order to explain the effect of the same as we
shall presently show.
The law regarding the nature and character of
proof of circumstantial evidence has been settled by several authorities of
this Court as also of the High Courts, The locus classicus of the decision of
this Court is the one rendered in the case of Hanumant v. The State of Madhya
Pradesh where Mahajan, J. clearly expounded the various concomitants of the
proof of a case based purely on circumstantial evidence, and pointed out thus:
"The circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved..... it must be such as to show
that within all human probability the act must have been done by the
accused." This decision was followed and endorsed by this Court in the
case of Dharambir Singh v. The State of Punjab. We shall however discuss
Hanumant's case fully in a later part of our judgment. Coming now to the
question of interpretation of sec. 32(1) of The Evidence Act, this Court in the
case of Ratan Gond v. State of Bihar S.K. Das, J.
made the following observations:
102 "The only relevant clause of s. 32
which may be said to have any bearing is cl.(1) which relates to statements
made by a person as to the cause of his death or as to any of the circumstances
of the transaction which resulted in his death. In the case before us, the
statements made by Aghani do not relate to the cause of her death or to any of
the circumstances relating to her death; on the contrary, the statements relate
to the death of her sister." In the 'Law of Evidence' by Woodroffe &
Ameer Ali (Vol.
II) the authors have collected all the cases
at one place and indicated their conclusions thus:
"To sum up, the test of the relevancy of
a statement under Section 32(1), is not what the final finding in the case is
but whether the final finding in the case is but whether the cause of the death
of the person making the statement comes into question in the case.
The expression 'any of the Circumstances of
the transaction which resulted in his death'; is wider in scope than the
expression 'the cause of his death'; in other words, Clause (1) of Section 32
refers to two kinds of statements: (1) statement made by a person as to the
cause of his death, and (2) the statement made by a person as to any of the
circumstances of the transaction which resulted in his death.
The words, 'resulted in his death' do not
mean 'caused his death', Thus it is well settled that declarations are
admissible only in so far as they point directly to the fact constituting the
res gestae of the homicide; that is to say, to the act of killing and to the
circumstances immediately attendant thereon, like threats and difficulties
acts, declarations and incidents, which constitute or accompany and explain the
fact or transaction in issue.
They are admissible for or against either
party, as forming parts of the res gestae." (P. 952) It would appear that
the solid foundation and the pivotal pillar on which rests the edifice of the
prosecution may be indicated as follows:- 103 (1) Written dying declaration by
the deceased in her letters, two of which were addressed to her sister Anju and
one her friend Vahini, (2) The oral statements made by the deceased to her
father (PW 2), mother (PW 20), Sister (PW 6) and her friend (PW 3) and also to
PWs 4 and 5 showing her state of mind shortly before her death and the
complaints which she made regarding the ill- treatment by her husband, (3)
evidence showing that the appellant was last seen with the deceased in the room
until the matter was reported to the police.
(4) the unnatural and incriminating conduct
of the appellant, (5) the medical evidence taken alongwith the Report of the
chemical examiner which demonstrably proves that it was a case of homicide,
completely rules out the theory of suicide as alleged by the appellant.
Mr. Jethmalani, learned counsel for the
appellant, has vehemently argued that there was a very strong possibility of
the deceased having committed suicide due to the circumstances mentioned in her
own letters. He has also questioned the legal admissibility of the statements
contained in the written and oral dying declarations. He has submitted that the
so-called dying declarations are admissible neither under s. 32 nor under s.8
of the Evidence Act it was submitted by the appellant that the present case is
not at all covered by cl.(1) of s. 32 of the Evidence Acts.
The leading decision on this question, which
has been endorsed by this Court, is the case of Pakala Narayana Swami v.
Emperor where Lord Atkin has laid down the following tests:
"It has been suggested that the
statement must be made after the transaction has taken place, that the person
making it must be at any rate near death, that the "circumstances"
can only include the acts done when and 104 where the death was caused. Their
Lordships are of opinion that the natural meaning of the words used does not
convey any of these limitations. The statement may be made before the cause of
death has arisen, or before the deceased has any reason to anticipate being
killed.
The circumstances must be circumstances of
the transaction: general expressions indicating fear or suspicion whether of a
particular individual or otherwise and not directly related to the occasion of
the death will not be admissible----------- Circumstances of the
transaction" is a phrase no doubt that conveys some limitations. It is not
as broad as the analogous use in "circumstantial evidence" which
includes evidence of all relevant facts. It is on the other hand narrower than
"res gestae". Circumstances must have some proximate relation to the
actual occurrence. ----------It will be observed that "the circumstances
are of the transaction which resulted in the death of the declarant."
These principles were followed and fully endorsed by a decision of this Court
in Shiv Kumar & Ors v. The State of Uttar Pradesh where the following
observations were made:
"It is clear that if the statement of
the deceased is to be admissible under this section it must be a statement
relating to the circumstances of the transaction resulting in his death. The
statement may be made before the cause of death has arisen, or before the
deceased has any reason to anticipate being killed,---------A necessary
condition of admissibility under the section is that the circumstance must have
some proximate relation to the actual occurrence------- ---- The phrase
"circumstances of the transaction" is a phrase that no doubt conveys
some limitations. It is not as broad as the analogous use in "circumstantial
evidence" which includes evidence of all relevant facts. It is on the
other hand narrower than "res gestae" (See Pakala Narayana Swami v.
The King Emperor AIR 1939 PC 47).
The aforesaid principles have been followed
by a long catena of authorities of almost all the courts which have been
noticed in this case. To mention only a few important once, in Manoher Lal 105
& ors. v. The State of Punjab, the Division Bench of the Punjab &
Haryana High Court observed thus:
The torture administered sometimes manifests
itself in various forms. To begin with, it might be mental torture and then it
may assume the form of physical torture. The physical harm done to the victim
might be increased from stage to stage to have the desired effect. The fatal
assault might be made after a considerable interval of time, but if the
circumstances of the torture appearing in the writings of the deceased come
into existence after the initiation of the torture the same would be held to be
relevant as laid down in Section 32(1) of the Evidence Act." We fully
agree with the above observations made by the learned Judges. In Protima Dutta
& Anr. v. The State while relying on Hanumant's case (supra) the Calcutta
High Court has clearly pointed out the nature and limits of the doctrine of proximity
and has observed that in some cases where there is a sustained cruelty, the
proximity may extend even to a period of three years. In this connection, the
High Court observed thus:
"The 'transaction' in this case is
systematic ill treatment for years since the marriage of Sumana with incitement
to end her life. Circumstances of the transaction include evidence of cruelty
which produces a state of mind favourable to suicide. Although that would not
by itself be sufficient unless there was evidence of incitement to end her life
it would be relevant as evidence.
This observation taken as a whole would, in
my view, imply that the time factor is not always a criterion in determining
whether the piece of evidence is properly included within "circumstances
of transaction. "--------"In that case the allegation was that there
was sustained cruelty extending over a period of three years interspersed with
exhortation to the victim to end her life." His Lordship further observed
and held that the evidence of cruelty was one continuous chain, several links
of which were touched up by the exhortations to die. "Thus evidence 106 of
cruelty, ill treatment and exhortation to end her life adduced in the case must
be held admissible, together with the statement of Nilima (who committed
suicide) in that regard which related to the circumstances terminating in
suicide." Similarly, in Onkar v. State of Madhya Pradesh while following
the decision of the Privy Council in Pakala Narayana Swami's case (supra), the
Madhya Pradesh High Court has explained the nature of the circumstances
contemplated by s. 32 of the Evidence Act thus:
"The circumstances must have some
proximate relation to the Actual occurrence and they can only include the acts
done when and where the death was caused.------- Thus a statement merely
suggesting motive for a crime cannot be admitted in evidence unless it is so
intimately connected with the transaction itself as to be a circumstance of the
transaction. In the instant case evidence has been led about statements made by
the deceased long before this incident which may suggest motive for the
crime." In Allijan Munshi v. State, the Bombay High Court has taken a
similar view.
In Chinnavalayan v. State of Madras two
eminent Judges of the Madras High Court while dealing with the connotation of
the word 'circumstances' observed thus:
"The special circumstance permitted to
transgress the time factor is, for example, a case of prolonged poisoning,
while the special circumstance permitted to transgress the distance factor is,
for example, a case of decoying with intent to murder. This is because the
natural meaning of the words, according to their Lordships, do not convey any
of the limitations such as that the statement must be made after the
transaction has taken place, that the 107 person making it must be at any rate
near death, that the circumstances can only include acts done when and where
the death was caused. But the circumstances must be circumstances of the
transaction and they must have some proximate relation to the actual
occurrence." In Gokul Chandra Chatterjee v. The State the Calcutta High
Court has somewhat diluted the real concept of proximity and observed thus:
'In the present case, it cannot be said that
statements in the letters have no relation to the cause of death. What drove
her to kill herself was undoubtedly her unhappy state of mind, but the
statements in my view have not that proximate relation to the actual occurrence
as to make them admissible under s. 32(1), Evidence Act. They cannot be said to
be circumstances of the transaction which resulted in death." We, however,
do not approve of the observations made by the High Court in view of the clear
decision of this Court and that of the privy Council. With due respect, the
High Court has not properly interpreted the tenor and the spirit of the ratio
laid down by the Privy Council. We are, therefore, of the opinion that this
case does not lay down the correct law on the subject.
Before closing this chapter we might state
that the Indian law on the question of the nature and scope of dying
declaration has made a distinct departure from the English law where only the
statements which directly relate to the cause of death are admissible. The
second part of cl.(1) of 32, viz. "the circumstances of the transaction
which resulted in his death, in cases in which the cause of that person's death
comes into question" is not be found in the English law. This distinction
has been clearly pointed out in the case of Rajindera Kumar v. The State where
the following observations were made:
"Clause (1) of s. 32 of the Indian
Evidence Act provides that statements, written or verbal, of relevant facts
made by a person who is dead,--------are themselves rele- 108 vant facts when
the statement is made by a person as to the cause of his death, or as to any of
the circumstances of the transaction which resulted in his death, in case, in
which the cause of that person's death comes into question.---------- It is
well settled by now that there is difference between the Indian Rule and the
English Rule with regard to the necessity of the declaration having been made
under expectation of death.
In the English Law the declaration should
have been made under the sense of impending death whereas under the Indian Law
it is not necessary for the admissibility of a dying declaration that the
deceased at the time of making it should have been under the expectation of
death.
And in the case of State v. Kanchan Singh
& Anr. it was observed thus:
"The law in India does not make the
admissibility of a dying declaration dependent upon the person's having a
consciousness of the approach of death. Even if the person did not apprehend
that he would die, a statement made by him about the circumstances of his death
would be admissible under s. 32. Evidence Act.
In these circumstances, therefore, it is
futile to refer to English cases on the subject.
Thus, from a review of the authorities
mentioned above and the clear language of s.32(1) of the Evidence Act, the
following propositions emerge:- (1) Section 32 is an exception to the rule of
hearsay and makes admissible the statement of a person who dies, whether the
death is a homicide or a suicide, provided the statement relates to the cause
of death, or exhibits circumstances leading to death. In this respect, as
indicated above, the Indian Evidence Act, in view of the peculiar conditions of
our society and the diverse nature and 109 character of our people, has thought
it necessary to widen the sphere of s.32 to avoid injustice.
(2) The test of proximity cannot be too
literally construed and practically reduced to a cut-and-dried formula of
universal application so as to be confined in a straitjacket. Distance of time
would depend or vary with the circumstances of each case. For instance, where
death is a logical culmination of a continuous drama long in process and is, as
it were, a finale of the story, the statement regarding each step directly
connected with the end of the drama would be admissible because the entire
statement would have to be read as an organic whole and not torn from the
context.
Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as being a part of the
transaction of death. It is manifest that all these statements come to light
only after the death of the deceased who speaks from death. For instance, where
the death takes place within a very short time of the marriage or the distance
of time is not spread over more than 3-4 months the statement may be admissible
under s.32.
(3) The second part of cl.1 of s.32 is yet
another exception to the rule that in criminal law the evidence of a person who
was not being subjected to or given an opportunity of being cross-examined by
the accused, would be valueless because the place of cross- examination is
taken by the solemnity and sanctity of oath for the simple reason that a person
on the verge of death is not likely to make a false statement unless there is
strong evidence to show that the statement was secured either by prompting or
tutoring.
(4) It may be important to note that s.32
does not speak of homicide alone but includes suicide also, hence all the
circumstances which may be relevant to prove a case of homicide would be
equally relevant to prove a case of suicide.
(5) Where the main evidence consists of
statements and letters written by the deceased which are directly connected
with or related to her death and which reveal a tell-tale story, the said
statement would clearly fall within the four corners of s.32 and, therefore,
admissible. The distance of 110 time alone in such cases would not make the
statement irrelevant.
This now brings us to a close consideration
of the contents of the letters (Exhs. 30, 32 and 33) written by Manju to her
sister and friend. We propose to examine the contents of the letters for four
purposes:
1) in order to find out the state of mind and
psychological attitude of Manju, 2) the nature of Manju's attitude towards her
husband and in-laws, 3) the amount of tension and frustration which seems to be
clearly expressed in the letters and 4) to determine Manju's personal traits
and psychological approach to life to determine if she was ever capable of or
prone to committing suicide.
We start with the letter dated 8.5.82 (Ex.
30) which was addressed to her sister Anju and is printed at page 191 of Part I
of the printed Paperbook. The learned counsel for the appellant in order to
make our task easy has supplied the English translation as also the Roman
script of the original letter. On a comparison of the two versions, we are of
the opinion that by and large the English translation printed in the Paperbook
is a true and faithful rendering of the contents of the original letter. It is
not necessary for us to extract the entire letter but we propose to extract only
the relevant portions which seek to explain and illustrate the four purposes
mentioned above.
"All read the letter with curiosity, or
it may go to anybody's hand. I do not want to take any risk. So I have taken up
today for writing, the second letter to you." The Roman scripy runs thus:-
(P.191) "Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad
saktahai. Aisi risk leni nahin aai. Isliye maine tumhe aaj doosra khat likhneko
liya." (P.17) An analysis of the above clearly shows that Manju was a highly
secretive woman and wanted to keep her personal matters or 111 secrets to
herself except giving a rough idea or a passing glimpse of her feelings only to
those who were very close to her as friends or near relations. The extract
shows that perhaps in a spell of heavy emotions she had written a very long
letter to her sister whom she regarded as her best friend but on second thought
she tore it off lest it may fall in anybody's hands and she was not prepared to
take such a risk. This mentality and noble nature would be of great assistance
to us in assessing the probative value of the statements made by her to her
parents, sister and friend during her last visit to Beed. The second paragraph,
which is extracted below, reflects her state of mind and the tension and
torture which she was undergoing:
"Now in this letter, when (Out of) the
things coming to my mind which cannot be written, I do not understand what is
to be written, The State of mind now is very much the same. Enough. You
understand (me). I am undergoing a very difficult test. I am unable to achieve
it. Till I could control (myself), well and good. When it becomes impossible,
some other way will have to be evolved. Let us see what happens. All
right." (P.191) She has hinted that hinted that she was passing through
difficult times but was trying to control herself as much as she could. She has
further indicated that if things did not improve then she may have to evolve
some other method. The exact words used in the Roman script runs thus:
"Jab tak sambhal sakti hoon theek hai
jab assambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota
hai," The words "some other way will have to be evolved" clearly
gives a clue to her psychotic state of mind and seem to suggest that the other
method to get rid of all her troubles was to commit suicide. It is pertinent to
note that in the first two paragraphs of her letter extracted above there is no
indication nor any hint about the conduct of her husband.
In the third para of her letter she states
her feelings thus: "I thought much that since the house of my husband's
parents is at Pune, I would do this and that or the people 112 from the house
of my husband's parents are free.
However, I have gradually come to know that
in that house, the worth of a daughter-in-law is no more than that of a
laborer." (P.191) The relevant portion in the Roman script reads thus:
"Is ghar mein bahu ki keemat majdoor se
jyada nahin hai." (P. 18) At the end or the third paragraph she repeats
her sad plight thus:
"My state here however is like an
unclaimed person. Let it be gone. I do not like to weep (over it). When we will
meet, we will talk all the things." In the middle of the 4th paragraph she
comes out with an emotional outburst by indicating that all her hopes had been
shattered and because of being neglected by her husband her health was
adversely affected. In the Roman script she used the following words:
"Sachmuch kya kya sapne rahte hain
kuarepanmein, magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu maine
kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati mujhse bahut
pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi.
Tabiyat par uska asar dikh raha hai." (P. 19-20) In the latter part of the
8th paragraph while giving vent to her feelings she states thus:
"Now Manju is moving, it is necessary to
tell that she is alive. You don't tell anybody about this letter.
I felt like telling all this to Bhausab.
What, however, is the use of making him sorry. One should test one's fate,
whatever may be the result. I want to tell you all. But I cannot tell."
The words used by her show her affectionate and secretive nature and the
precaution taken by her not to tell anything to her father, who is addressed as
'Bhausab'. The Roman script of the relevant portion runs thus:
113 "Dil tu karta tha Bai Bhau Sahab ko
sab bataon, magar unko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija
kya nikalta hai. Mujhe tumbein sab kuch batana hai magar bata nahin
sakti." (P.22) These extracts throw a flood of light on the nature,
character, mental attitude, suffering and shock of the deceased. One thing
which may be conspicuously noticed is that she was prepared to take all the
blame on her rather than incriminate her husband or her inlaws. The other
portions of the letter (Ex.30) are not at all germane for the purpose of this
case. Summarising the main contents of the letter, the following conclusions or
inferences follow:
(a) Manju was a highly emotional and
sensitive woman, (b) She got the shock of her life when due to ill- treatment
by her husband and in-laws she found that all her dreams had been shattered to
pieces after marriage leaving her a dejected, depressed and disappointed woman,
(c) she had been constantly ill-treated by her in-laws and her position in the
house was nothing but that of an unpaid maid-servant or a labourer, (d) she
wanted to keep all her worries and troubles to herself and on no account was
she prepared to disclose them to her parents or even to her sister, lest they
also get depressed and distressed.
(e) no serious allegation of cruelty had been
made against the husband personally by her and she thought that she herself
should suffer out of sheer frustration.
Now we shall examine Ex.32 which is a letter
dated 8.6.82 written by Manju to her sister Anju. This was perhaps her last
letter to Anju and is very important and relevant for decision of the case. The
letter begins with the words "I am happy here." In the second
paragraph she expresses her feelings as follows:
"Shobhabai's 'Sadi' programme is fixed
on 13th I do not know why there is such a dirty atmosphere in the house ? It is
felt every moment that something will happen.
114 Everybody is in tension. No work has been
started in the house. Let it go. I am out of mind. Still I am used not to pay
need to it. Ala what about your law." (P.195) So far as the first part is
concerned, the 'dirty atmosphere' about which she speaks is totally unrelated
to anything done by the husband or of any cruel treatment by him; it merely
refers to the tension prevailing in the family as the 'Sadi' (Kohl) was fixed
on 13.6.82. Her anger is not so much towards her husband or herself as for the
manner in which things were being done. She complained that no work had been started
and being the eldest daughter in law of the family she felt it her duty to see
that all arrangements were complete. It was conceded by the Additional
Solicitor-General that this portion of the letter does not refer to any
ill-treatment by the husband or his parents but relates only to the defective
and unsatisfactory arrangements for such an important function. The relevant
portion of the 3rd paragraph is also more or less innocuous but in between the
lines it contains a tale of woe, a spirit of desperation and frustration and a
wave of pessimism. The actual vernacular words are- "Mera to aane ka kya
hota hai dekna hai Buajike yahan se khat aur aaya to shahid chance mil sakta
hai.
Magar meri mangal ke dulhan ke roop mein
dekhne ki bahut ichha hai. Dekhenge." She was naturally apprehending something
and was not very hopeful of going to her father's place. This being her last
letter, and that took a short one, it gives a clear inkling of the manner of
how her mind was working. She did not lay any blame on her husband or anybody
else but still she was afraid that something was going to happen and that she
may not be able to go to her father and see the marriage of her sister-in-law
for which preparations were being made.
In our opinion, these words are extremely
prophetic and seem to indicate that by that time she had almost made up her
mind to end her life instead of carrying on her miserable existence. As brevity
is the soul of wit, she directly hinted that she may not be able to meet her
father or anybody naturally because when a life comes to an end there can be no
such question. Exh. 32, though a short letter, depicts her real feeling and
perhaps a tentative decision which she may have already taken but did not want
to disclose for obvious reasons.
115 Then we come to Exh.33 which is a letter
dated 23.4.82 written by the deceased to her close friend, Vahini and which
shows her exact feelings, changing, mood and emotions.
This is the only letter where she had made
clear complaints against her husband and the relevant portions may be extracted
thus:
"Really, Vahini, I remember you very
much. Even if I am little uneasy, I feel that you should have been near with
me.
All persons here are very good. Everybody is
loving. Still I feel lonely. One reason is that, in the house there are many
persons and they are elder to me and such I do not dare to do any work
independently.
Every time some fear is in mind which leads
to confusion.
God knows when I can come there ? The point
on which we had discussion is as it was. Vahini. I swear you if you talk to
anyone. I am much in pains. But what else can I do ? No other go than that, and
the same mistake is done again and again by me. It is that I go ahead and talk
for ten times, then I become angry if he does not speak. Vahini, there is
nothing in my hands except to weep profusely. At least till now this man has no
time to mind his wife, let it be, but Vahini, what shall I do?" (P.196)
"Who knows what hardships be-fall on me, so long I am alive. Why the god
has become (unkind) towards me." (P. 197) "Since yesterday I have
made up my mind not to speak a word even, till he speaks (to me). Let me see to
what extent I control my feelings. Vahini, you also pray to god for me whether
a girl like me should be put to such a difficult test. Vahini, I am so much
afraid of him that the romantic enchantment during first 10-15 days after
marriage has become like a dream." "I cannot dare to ask him whether
his clothes be taken for wash. At present my status is only that of a maid servant
without pay as of right.
116 Why so much indifference towards me only
? Vahini, I, feel to weep in your arms. Vahini come to Pune early.
On getting up every morning I feel he will
speak today but every day I am hoping against hope. Vahini, what will happen ?
Now there is no ray of hope.
Day before yesterday I became excited and
uttered in rage. "You hate me, was I unable to get food in my parent's
house ? He was irritated due to word 'hate'. He said. if you talk more like
this, I will be very bad man.
If this goes on, I will not come to sleep.
That means not permitted (to cry) also. How he says to me, are you tired of me
so early ? What shall I say to such a man. Once I feel that he does not count
me. On second thought, I feel he cares me much. But due to moody nature, it
will take time to pacify the same. On the day on which self-pride is lessened,
no other person will be more fortunate than me But till that day it is not
certain that I will be alive." (P. 197) In the second paragraph she starts
by giving an indication that she was feeling uneasy and would have very much
liked to have Vahini with her. In the third paragraph she clearly states that
all persons in her father-in-laws' place were very good and loving but due to a
number of persons in the house she did not get a chance to work independently.
The last line "every time some fear is in mind which leads to
confusion" is the starting point of the first symptom of her invisible
fear which she was unable to locate. The fourth paragraph is rather important
which shows that whatever her feelings may have been she sought an oath from
Vahini not to talk to anyone regarding the matters which she proposed to write
in the said letter. She says that she was much in pains and hints that she
weeps profusely and the reason given by her for this is that she went on
committing mistakes and talked to her husband many times but his silence was
extremely painful which made her angry. In the last portion, for the first
time, she makes a direct complaint against her husband to the effect that he
had no time to look after her (Manju). In the same paragraph she describes her
hardships and complains 117 why God was unkind to her. She further expresses
her sentiments that the romantic enchantment which she experienced during the
first few days of her marriage had completely disappeared and looks like a lost
dream or a "Paradise lost". Then she describes her plight as being a
maid-servant without pay. She again complains of indifference towards her.
Ultimately, she hopes against hope that someday he will speak to her and
discuss the problems but there is no response. Later, she refers to a
particular incident and goes to the extent of telling him that he hates her.
This seems to have irritated the husband who resented this remark very much.
Again in the same breath towards the end of the paragraph, while she says that
her husband does not care for her yet she at once changes her mind and says
that he cares for her much but due to his moody nature it will take time to pacify
him. Her feelings again take a sudden turn when she says that when her
husband's self-pride is lessened none would be more fortunate than her. The
next line is rather important because she hints that till they said heyday
comes perhaps she might not be alive.
A careful perusal of this letter reveals the
following features- (1) after going to her marital home she felt completely
lost and took even minor things to her heart and on the slightest provocation
she became extremely sentimental and sensitive.
(2) She exhibited mixed feelings of optimism
and pessimism at the same time.
(3) it can easily be inferred that she did
not have any serious complaint against her husband but she became sad and
morose because she was not getting the proper attention which she thought she
would get.
(4) There is no indication that she expected
any danger from her husband nor is there anything to show that things had come
to such a pass that a catastrophe may have resulted. There may be certain
concealed and hidden hints which she was not prepared to reveal in writing :
what they were is not clear.
(5) A close reading and analysis of the
letter clearly shows at least two things- 118 (a) that she felt extremely
depressed, (b) that there was a clear tendency resulting from her psychotic
nature to end her life or commit suicide.
This possibility is spelt out from the
various letters which we have extracted. Indeed, if this was not so how could
it be possible that while not complaining against her husband she gives a hint
not only to Vahini but also to Anju that she might not live. She mentions of no
such threat having been given to her by husband at any time or anywhere.
(6) The contents of the letter lead us to the
irresistible conclusion that Manju felt herself lonely and desolate and was
treated as nothing but a chattel or a necessary evil ever since she entered her
marital home.
Thus, from the recitals in the letters we can
safely hold that there was a clear possibility and a tendency on her part to
commit suicide due to desperation and frustration. She seems to be tired of her
married life, but she still hoped against hope that things might improve. At
any rate, the fact that she may have committed suicide cannot be safely
excluded or eliminated. It may be that her husband may have murdered her but
when two views are reasonably possible the benefit must go to the accused. In
order to buttress our opinion, we would like to cite some passages of an
eminent psychiatrist, Robert J. Kastenbaum where in his book 'Death, Society and
Human Experience' he analyses the causes, the circumstances, the moods and
emotions which may drive a person to commit suicide. The learned author has
written that a person who is psychotic in nature and suffers from depression
and frustration is more prone to commit suicide than any other person. In
support of our view, we extract certain passages from his book :
"The fact is that some people who commit
suicide can be classified as psychotic or severely disturbed.
(P.242) If we are concerned with the probability
of suicide in very large populations, then mental and emotional disorder is a
relevant variable to consider.
(P.243) 119 And it is only through a gross
distortion of the actual circumstances that one could claim all suicides are
enacted in a spell of madness.
(P.243) "Seen in these terms, suicide is
simply one of the ways in which a relatively weak member of society loses out
in the jungle like struggle.
(P.243) The individual does not destroy
himself in hope of thereby achieving a noble postmortem reputation or a place
among the eternally blessed. Instead he wishes to subtract himself from a life
whose quality seems a worse evil than death.
(P.245) The newly awakened spirit of hope and
progress soon became shadowed by a sense of disappointment and resignation
that, it sometimes seemed, only death could swallow.
(P.245) Revenge fantasies and their
association with suicide are well known to people who give ear to those in
emotional distress." (P.251) "People who attempt suicide for reasons
other than revenge may also act on the assumption that, in a sense, they will
survive the death to benefit by its effect.
xx xx xx The victim of suicide may also be
the victim of self-expectations that have not been fulfilled. The sense of
disappointment and frustration may have much in common with that experienced by
the person who seeks revenge though suicide-However, for some people a critical
moment arrives when the discrepancy is experienced as too glaring and painful
to be tolerated.
If something has to go it may be the person
himself, not the perhaps excessively high standards by which the judgment has
been made-Warren Breed and his colleagues found that a sense of 120 failure is
prominent among many people who take their own lives." (P.252) The above observations
are fully applicable to the case of Manju. She solemnly believed that her holy
union with her husband would bring health and happiness to her but
unfortunately it seems to have ended in a melancholy marriage which in view of
the circumstances detailed above, left her so lonely and created so much of
emotional disorder resulting from frustration and pessimism that she was forced
to end her life. There can be no doubt that Manju was not only a sensitive and
sentimental woman but was extremely impressionate and the letters show that a
constant conflict between her mind and body was going on and unfortunately the
circumstances which came into existence hastened her end.
People with such a psychotic philosophy or
bent of mind always dream of an ideal and if the said ideal fails, the failure
drives them to end their life, for they feel that no charm is left in their
life.
Mary K. Hinchliffe, Douglas Hooper and F.
John Roberts in their book 'The Melancholy Marriage' observe that-
"Studies of attempted suicides cases have also revealed the high incidence
of marital problems which lie behind the act. In our own study of 100
consecutive cases (Roberts and Hooper 1969), we found that most of them could
be understood if the patients interactions with others in their environment
were considered." (P.5) Such persons possess a peculiar psychology which
instils extreme love and devotion but when they are faced with disappointment
or find their environment so unhealthy of unhappy, they seem to loose all the
charms of life. The authors while describing these sentiments observe thus :
"Hopelessness', 'despair', 'lousy, and
'miserable' draw attention to the relationship of the depressed person to his
environment. The articulate depressed person will often also struggle to put
into words the fact that not only does there appear to be no way forward and
thus no point to 121 life-but that the world actually looks different."
(P.7) Coleridge in `Ode to Dejection' in his usual ironical manner has very
beautifully explained the sentiments of such persons thus :
"I see them all so excellently fair- I
see, not feel, how beautiful they are ;" At another place the author
(Hinchliffe, Hooper & John) come to the final conclusion that ruptured
personal relationship play a major part in the clinical picture and in this
connection observed thus :
"Initially we applied these ideas to
study of cases of attempted suicide (Roberts and Hooper 1969) and although we
did not assume that they were all necessarily depressed, we looked for distal
and proximal causes for their behaviour and found that ruptured personal
relationships played a major part in the clinical picture." (P.50) The
observations of the authors aptly and directly apply to the nature, mood and
the circumstances of the unfortunate life of Manju which came to an end within
four months of marriage.
We have pointed out these circumstances
because the High Court has laid very great stress on the fact that the evidence
led by the prosecution wholly and completely excludes the possibility of
suicides and the death of Manju was nothing but a dastardly murder.
We shall now deal with the next limb of the
oral dying declaration said to have been made by the deceased to her parents
and friends. Some of the statements which have a causal connection with the
death of Manju or the circumstances leading to her death are undoubtedly
admissible under s.32 of the Evidence Act as held by us but other statements
which do not bear any proximity with the death or if at all very remotely and
indirectly connected with the death would not be admissible. Unfortunately,
however, the two kinds of statements are so inextricably mixed up that it would
122 take a great effort in locating the part which is admissible and the one
which is not.
Before discussing the evidence of the
witnesses we might mention a few preliminary remarks against the background of
which the oral statements are to be considered. All persons to whom the oral
statements are said to have been made by Manju when she visited Beed for the
last time, are close relatives and friends of the deceased.
In view of the close relationship and
affection any person in the position of the witness would naturally have a
tendency to exaggerate or add facts which may not have been stated to them at
all. Not that is done consciously but even unconsciously the love and affection
for the deceased would create a psychological hatred against the supposed
murderer and, therefore, the court has to examine such evidence with very great
care and caution. Even if the witnesses were speaking a part of the truth or
perhaps the whole of it, they would be guided by a spirit of revenge or nemesis
against the accused person and in this process certain facts which may not or
could not have been stated may be imagined to have been stated unconsciously by
the witnesses in order to see that the offender is punished. This is human
psychology and no one can help it.
This now takes us to a consideration of the
evidence of the witnesses concerned which read together with the letters form a
composite chain of evidence regarding the causes or the circumstance relating
to the death of the deceased.
According to the prosecution, the last visit
of Manju to Beed was on 25.5.82 where she stayed till 3rd of June 1982 when she
was brought back by the father of the appellant. In other words, the narration
of the troubles and tribulations of Manju was made only during her last visit
and not earlier. These statements are alleged to have been made to Rameshwar
Chitlange (PW 2), Manju's father, Rekha (PW 3), who was Manju's friend and
referred to as `Vahini' in the letter Ex.33, Anju (PW 6), Manju's sister to
whom letters (Exhs. 30 and 32) were written, and PW-20, Bai, the mother of
Manju. Meena Mahajan (PW 5) was also examined but we are not in a position to
rely on the evidence of this witness for two reasons -(1) she does not figure
anywhere in any of the letters written by Manju, and (2) nothing was told to
her by Manju directly but she was merely informed regarding the incidents
mentioned by PW-2. This sort of indirect evidence is not worthy of any
credence.
123 We would first deal with the evidence of
PW-2, Rameshwar Chitlange (Manju's father). We shall give a summary of the
relevant part of his evidence because the other parts relate to how the
marriage was performed and the spouses had gone for honeymoon which are not
germane for our purpose. The witness states that when Manju came to Beed with
her maternal uncle he found her somewhat uneasy and on making enquiries whether
she was happy at her husband's house she told him that she was not very happy
with her husband since she noticed that her husband was not very much pleased
with her and in fact hated her. These facts are the result of the usual
domestic quarrels between a husband and a wife, hence this statement cannot be
said to be so directly or proximately related to the death of Manju so as to be
admissible under s.32 of the Evidence Act.
It appears from his evidence that even after
hearing the narration from his daughter he advised her to get herself adjusted
to the situation and to the atmosphere of her new marital home. Apart from
being inadmissible this does not appear to be of any assistance to the
prosecution in proving the case of murder alleged against the appellant.
The witness goes on to state that as the
grandfather of the accused had died he visited Pune, accompanied by his wife
and Manju. Since this was more or less a formal visit for expressing his
condolences to the bereaved family, he left Manju at the house of the accused.
The only part of his evidence on which reliance was placed by the prosecution
is that he had noticed Manju very much disturbed and uneasy and requested
Birdichand (father of the accused) to allow him to take Manju to the house of
Dhanraj, which he did. On reaching the house of Dhanraj, the witness states
that Manju completely broke down and started weeping and fell in the grip of
her mother. This state of Manju, which the witness saw with his own eyes, would
undoubtedly be primary evidence of what he saw and felt though not in any way
connected with s. 32 of the Evidence Act. But from this circumstance alone it
cannot be safely inferred that Manju apprehended any serious danger to her life
from her husband.
The witness further states that he informed
Birdichand about the grievances made to him by Manju. The appellant, Sharad,
was sent for and he quietly listened to his father but the witness felt that
whatever Birdichand may have told to his son that does not appear to have made
any serious impact on him (appellant) and he left the 124 room. This is purely
an opinion evidence and therefore not admissible. Even so, the accused perhaps
did not think it necessary to enter into arguments with his father-in-law in
the presence of his father and that is why he may have kept quiet. From this no
inference can be drawn that he was in any way inimically disposed towards Manju
or was animated by a desire to take her life.
The witness further stated that he found that
Manju was weeping every now and then during the night at Dhanraj's place.
Later, in the morning the witness took Manju back to her in-laws house but his
grievance was that Sharad did not care to meet or talk to them. These are
however small circumstances which are incidents of any married life and from
this no adverse inference can be drawn against the appellant.
Another complaint made in the statement was
that when he made a voluntary offer to solve the difficulties of Sharad, the
appellant curtly told him that he did not want to get his difficulties solved
by other persons and at this attitude of Sharad the witness was naturally very
much disappointed. This conduct of the accused also is not of such an
importance as to lead to any adverse inference. Some persons who have a keen
sense of pride and self-respect do not like anyone else not even their father
or father-in-law to interfere in their personal matters. Perhaps this may be
the reason for the somewhat cool and curt attitude of Sharad but that proves
nothing. In fact, experience shows that where elders try to intermeddle in the
affairs of a husband and his wife, this creates a serious obstruction in the
relations of the married couple. Nothing therefore, turns upon this statement
of PW 2.
Again, the witness repeats that when Manju
came down to see him off he noticed her weeping all the time. To cut a long
story short, the witness came back to Beed and sent his son Pradeep to bring
Manju from Pune to Beed. On reaching there he was informed that Manju and
Sharad had gone on a holiday trip to Mysore, Triupati, etc. After the return of
Pradeep to Beed, Dhanraj informed the witness that Sharad and Manju had
returned to Pune and therefore, he sent his son, Deepak to Pune to bring back
Manju. When Manju arrived at Beed, the witness found her totally disturbed and
frightened. This statement would be admissible as primary evidence. What
probative value should be attached to this small matter is a different issue.
125 Thereafter, the witness was told the
incidents by his wife (PW 20) which had been narrated to her by Manju but that
is of no value so far as this witness is concerned as the main evidence would
be that of PW 20. However, in order to save the marriage from a a total
break-down the witness was extremely worried and therefore, he called one Hira Sarda,
a close acquaintance of the family of accused, who told him (witness) that he
was going to Hyderabad and after 4th-5th June some solution would be found out.
At the same time, he advised the witness not to make any haste in sending back
Manju to Pune.
On the 2nd June 1982, Birdichand arrived at
Beed and requested the witness to send Manju to Pune because the marriage of
Birdichand's daughter was fixed for 30th June 1982 and the Kohl (betrothal)
ceremony was to be held on the 13th of June so that Manju may be present at the
ceremony and look after the arrangements. The witness says that after hearing
this he apprised Birdichand that Manju was extremely frightened and that she
was not ready to go back to her husband's house nor was he (witness) willing to
send her back so soon. He suggested to Birdichand that as the marriage of his
nephew was to be celebrated at Beed on 25th June, Sharad would come to attend
the marriage and at that time he can take Manju with him. Birdichand, however,
persuaded the witness to send back Manju and assured him that no harm of any
kind would come to her and he also promised that Manju would be sent back to
Beed, The most important statement in the evidence of this witness may be
extracted thus :
"I was having this talk with Birdichand
on the first floor of my house. Manju heard this from the staircase, called me
out in the ground portion of the house and told me that she was not in a
position to go to the house of the accused. Since she was in a state of fear or
extreme fear in her mind and she also told me that she was not prepared to go
to the house of the accused.
** ** ** Therefore, after the meals I sent
Manju with Birdichand. Birdichand, Manju and Kavita then left Beed by about
12.30 p.m. by bus on 3rd of June, 82. At that 126 time Manju was constantly
weeping right from inside my house till the bus left. She was also in a state
of extreme fear." (P. 197) The witness has said many times in his
statement that Manju was always weeping and crying and the final crisis came when
on hearing the talks between him and Birdichand she called him from the
staircase and told him that she was not prepared to go to her husband's house
as she was in a state of extreme fear. It is difficult to believe this part of
the evidence of the witness for two reasons- (1) When the talks were going on
between two elders would Manju be sitting near the staircase to listen their
talks and call her father and give vent to her feelings and her decision not to
go back to Pune at any cost. This conduct appears to be directly opposed not
only to the tenor and spirit of the letters (Exhs. 30, 32 and 33) which we have
discussed but also against her mental attitude and noble nature.
(2) As indicated by us while discussing the
letters- could a woman who was so affectionate and reserved in nature and who
would not like the contents of her letters to Anju and Vahini to be disclosed
to her parents lest they feel worried, disturbed and distressed-suddenly turn
turtle, forgetting her sentiments not to worry them and come out in the open to
declare before all by weeping and crying that she was in a state of extreme
fear, seem to us to be inherently improbable. Once a mature woman develops a
particular nature or habit or a special bent of mind she is not likely to forgo
her entire nature-in this case, her affection and love for her parents and the
feeling of not doing anything which may cause distress or worry to them, and
start telling her woeful story to everyone whom she met.
Manju must have known fully that her husband's
sister's 127 betrothal ceremony was to be held on 13th June and if her
father-in-law was making request after request to take her to Pune to attend
the said ceremony, and had given all sorts of assurances that no harm would
come to her, would she still call her father and express her state of fear and
go on repeating what she had already said. This seems to us to be an
afterthought or an embellishment introduced in the evidence of the witness so
as to add credence to the prosecution story and provide an imaginary motive for
the murder of the deceased. Indeed, if she was bent on resisting all attempts
of her father-in-law to take her to Pune she would not have gone at all. On the
other hand, her subsequent conduct of ultimately going to Pune and making
arrangements for the Kohl ceremony belies the story put forward by the witness.
It is extremely difficult for a person to change a particular bent of mind or a
trait of human nature unless there are substantial and compelling circumstances
to do so. In the instant case, we find no such compelling circumstance even
taking the statement of the witness at its face value.
To take the other side of the picture, the
witness says that when he reached Pune on 12.6.82 and visited the place where
Manju had died, he found Sharad sleeping or lying on the cot and on seeing him
he immediately started crying vigorously and making a show of the grief and
shock they had received. The exact statement of the witness may be extracted
thus :
"I could notice that Sharad who was
sleeping or lying on the cot in the said room on seeing me entering the room
immediately started crying vigorously giving jerks to his body and making show
of the grief and the shock he had received. Ultimately I asked him as to what
had happened to Manju when he told me that since 11th it was the day of his
marriage with Manju, he and Manju were in joyest mood. According to him they
went to bed by about 12 midnight and he had a sexual act with Manju in such a
manner which they never had enjoyed before. Ultimately according to him when
they completely felt tired and exhausted both of them fell asleep. According to
him by about 5.30 a.m. when he got up and after visiting the urinal, when
returned to the room he found that Manju had not got up as usual since
according to him, she used to wake up at the same time he used to wake up and
so he 128 went near Manju and called her out when he found her dead." It
is rather strange that while the witness took whatever his daughter told him at
its face value without making any further enquiry, he immediately jumped to the
conclusion that the grief and tears in the eyes of his son- in-law were fake
and that he was merely shedding crocodile tears. There is nothing on the record
nor in the evidence to show any circumstance which may have led the witness to
arrive at this conclusion. On the other hand, if the conduct of the appellant,
as described by the witness, is seen from a dispassionate angle, it was quite
spontaneous and natural because by the time the witness reached Pune the
postmortem had been done and the death of Manju had come to light long before
his arrival. There was no reason for the witness to have presumed at that time
that Sharad must have committed the murder of the deceased. There were no
materials or data before him which could have led him to this inference. This
clearly shows one important fact, viz., that the witness was extremely
prejudiced against Sharad and if one sees anything-even the truth-with a pale
glass everything would appear to him to be pale.
The second part of the statement made by the
witness regarding having sexual intercourse near about midnight seems to us to
be inherently improbable. However, educated or advanced one may be, it is
against our precious cultural heritage for a person to utter such things in a
most frank and rudimentary fashion to his father-in-law. We are clearly of the
opinion that the story of having a sexual act, etc., was a pure figment of the
imagination of the witness and this, therefore, goes a long way off to detract
from the truth of the testimony of this witness.
Furthermore, at page 175 the witness admits
that during the life time of Manju, Anju and Rekha told him about the receipt
of the letters from Manju but they never referred to the nature or the contents
of the letters. This is a correct statement because both Anju and Vahini had
been requested by Manju not to disclose to her parents the state of affairs or
the tortures which she was suffering and perhaps they kept the sanctity of oath
given to them by the deceased. This is an additional circumstance to show that
even when Manju visited Beed for the last time she might tell something to her
own sister Anju or to Vahini but she would never dare 129 to disclose all the
details and put all the cards on the table before her parents-a step which she
deliberately desisted from coming into existence. We can understand the
evidence of the witness that Manju was worried, distressed and depressed.
Sometimes out of natural love and affection parents make a mountain of a mole
hill and this is what seems to have happened in this case.
Great reliance was placed by the Additional
Solicitor General, on behalf of the respondent, on the relevance of the
statements of PWs 2, 3, 6, and 20. He attempted to use their statements for
twin purposes-firstly, as primary evidence of what the witnesses saw with their
own eyes and felt the mental agony and the distress through which the deceased
was passing. Secondly, he relied on the statements made by the deceased (Manju)
to these witnesses about the treatment meted out to her by her husband during
her stay at Pune and furnishes a clear motive for the accused to murder her.
As regards the first circumstance, there can
be no doubt that the said evidence of the witnesses would undoubtedly be
admissible as revealing the state of mind of the deceased. This would be
primary evidence in the case and, therefore, there cannot be any doubt about
the relevancy of the statement of the witnesses in regard to this aspect of the
matter. As to what probative value we should attach to such statements would
depend on a proper application of the context and evidence of each of the
witnesses, As regards the second aspect-which is in respect of what the
deceased told the witnesses-it would only be admissible under s. 32 of the
Evidence Act as relating to the circumstances that led to the death of the
deceased. In view of the law discussed above and the propositions and the
conclusions we have reached, there cannot be any doubt that these statements
would fall in the second part of s.32 of the Evidence Act relating directly to
the transaction resulting in the death of Manju, and would be admissible.
Before, however, examining this aspect of the
question we might at the outset state that the character, conduct and the
temperament of Manju, as disclosed or evinced by the admitted letters (Exhs.
30,32 and 33), which demonstrate that it is most unlikely, if not impossible,
for Manju to have related in detail the facts which the aforesaid witnesses
deposed. If this conclusion is correct, then no reliance can be placed on this
part of the statement of the aforesaid witnesses.
We now proceed to discuss the evidence of PWs
3,4, 5, 6 and 130
20. As we have discussed the evidence of PW
2, father of Manju, it will be more appropriate to discuss now the evidence of
PW-20 (Manju's mother) from whom most of the matters spoken to by PW-2 were
derived. Her evidence appears at page 305 of part I of the Paper Book. It is
not necessary for us to go into those details which have already been deposed
to by PW-2. The most relevant part of her evidence is about the visit of Manju
to Beed on 2.4.82. She states that during this visit she found Manju cheerful
and happy and she did not complain of anything during her stay for 8- 10 days.
In answer to a question-whether she enquired from Manju or had any talk with
her during that period-she stated Manju told her that her husband was not
taking any interest in her and used to leave the house early in the morning and
return late at night on the excuse that he was busy with his factory work. It
may be stated here that the accused had a chemical factory where he used to
work from morning till late at night. The witness further deposed that Manju
informed her that there was no charm left for her at the house of her husband.
These facts however run counter to her first statement where she stated that
Manju was quite happy and cheerful as expected of a newly married girl. Even
so, whatever Manju had said does not appear to be of any consequence because
she (the witness) herself admits that she did not take it seriously and told
Manju that since she had entered a new family it might take some time for her
to acclimatise herself with the new surroundings. She also warned Manju against
attaching much importance to such matters.
Thereafter she goes on to state that near
about the 11th or 12th of April 1982 she (PW 20) alongwith her husband left for
Pune to offer condolences on the death of the grand-father of the appellant.
She then proceeds to state that during their second visit to Pune on the 11th
or 12th of May 1982 she stayed with her brother, Dhanraj and that while she was
there Manju hugged at her neck and having lost her control, started weeping
profusely. She further states that Manju requested her to take her to Beed as
it was not possible for her to stay in her marital house where she was not only
bored but was extremely afraid and scared.
On the next day she (PW 20) met the mother of
the appellant and told her plainly that she found Manju extremely perturbed,
uneasy and scared and that she was experiencing tremendous pressure and
restrictions from her husband. But the mother of the appellant convinced her
that there was nothing to worry about, 131 and everything will be alright. The
witness then narrated the fact to her husband and requested him to take Manju
with them to Beed. PW 2 then sought the permission of Birdichand to take Manju
to. Beed but he told him that as some guests were to visit him, he (PW 2) can
send somebody after 4-5 days to take Manju to Beed. It may be mentioned here
that the details about the sufferings and the mental condition of Manju was not
mentioned by this witness even to her husband (PW 2) as he does not say
anything about this matter.
Further, her statement is frightfully vague.
As already indicated that the letters (Ex.
30, 32, 33) clearly show that Manju never wanted to worry or bother her parents
about her disturbed condition, it appears to be most unlikely that on the
occasion of the death of her grandfather-in-law she would choose that
opportunity to narrate her tale of woe to her mother. This appears to us to be
a clear embellishment introduced by the prosecution to give a sentimental
colour to the evidence of this witness.
Ultimately, on May 25, 1982 Deepak brought
Manju to Beed and this time she was accompanied by her cousin, Kavita. Here
again, she states that on her arrival she found Manju extremely disturbed and
under tension of fear and Manju was prepared to make a clean breast of all her
troubles.
However, as Kavita was there and did not give
any opportunity to Manju to meet her mother alone, she (Kavita) was sent out on
some pretext or the other. Thereafter, Manju told her mother that she was
receiving a very shabby treatment from her husband and while narrating her
miserable plight she told her about two important incidents which had greatly
upset her-(1) that she happened to come across a love letter written by PW 37,
Ujwala Kothari to her husband which showed that the appellant was carrying on illicit
relations with PW 37, (2) that on one occasion the appellant told Manju that he
was tired of his life and did not want to live any more and, therefore-wanted
to commit suicide.
Despite Manju's enquiries as to why he wanted
to commit suicide, he did not give any reason. She then informed her mother
when this talk was going on, she (Manju) herself volunteered to commit suicide.
Thereafter, Sharad put forth a proposal under which both of them were to commit
suicide and they decided to write notes showing that they were committing
suicide. On hearing this plan from Sharad, Manju told him that she was not
inclined to commit suicide as she had not lost all hope of life and that she
had expressed her desire to commit suicide only because he had said that he would
do so. PW 20 would have 132 us believe that while in one breath she agreed to
the suicide pact yet the next moment she made a complete volte face. This is
hard to believe having regard to the nature of the temperament of Manju.
The two statements said have been made by
Manju to her mother appear to be contradictory and irreconcilable and smack of
concoction. According to Manju, Sharad then prepared two notes one addressed to
his father and another to his father-in-law and asked Manju to do the same but
she refused to do anything of the sort. The witness admitted that she was not
told as to what had happened to the notes written by the appellant.
All this story of a suicidal pact seems to us
nothing but a fairy tale. There is no mention nor even a hint in the letters
(Exhs. 30, 32, 33) written by Manju about the aforesaid suicidal pact and the
story narrated by the witness before the trial court, nor was the note produced
in the court. This appears to us to be a make-believe story and was introduced
to castigate the appellant for his shabby treatment towards Manju.
Another intrinsic circumstance to show the
untruth of this statement is that although PW 2 was apprised of these facts yet
he never mentioned them to Birdichand particularly when he was insisting that
Manju should be sent back to Pune for attending the betrothal ceremony of his
daughter Shobha.
Indeed, if this fact, which is of very great
importance so far as the lives of both the husband and the wife are concerned,
would have been there, the first thing which PW 2 would have done is to tell
Birdihand that matters had reached such a stage as to leave no doubt that her
daughter was in an instant fear of death and it was impossible for him to allow
his daughter to go to Pune where Sharad was bent on forcing her to commit
suicide or even murder her, more particularly because PW 20 admits in her
evidence that as all the things she had learnt from Manju were serious, she had
informed her husband about the same who agreed with her.
Apart from this grave incident, the witness
deposed to another equally important matter, viz., that on the Shila Septami
day, the appellant rang up his mother to send Manju alongwith Shobha to a hotel
(Pearl Hotel), as has been deposed to by other witnesses) because he wanted to
give a party to his friends. As Shoba was not present in the house, Manju's
mother-in-law sent her alone, in 133 a rickshaw to the hotel. On reaching the
hotel she did not find any other person except a girl who was introduced by her
husband as Ujavla Kothari. The most critical part of the incident is that the
appellant is alleged to have informed Manju that she should take lessons from
Ujvala as to how she should behave with him and also told her that Ujvala knew
everything about him and he was completely in her hands.
Subsequently the appellant went away and
Ujvala told her that the appellant was a short-tempered man and she should talk
to him only if and when he wanted to talk to her. She (Ujvala) also told Manju
that the appellant was completely under her command and she was getting every
bit of information about the incidents happening between the husband and the
wife. Finally, she was apprised of the fact by Ujvala that she and Sharad were
in love with each other.
Manju is said to have retorted and protested
to Ujvala by saying that she was not prepared to take any lessons from her
regarding her behaviour towards her husband as she (Manju) was his wedded wife
while Ujvala was only a friend.
Manju also told her mother that these facts
were narrated by her to the appellant and accused No. 2. As a result of this
incident, Manju became a little erratic which attracted double cruelty towards
her by her husband and made her extremely scared of her life and in view of
this development she requested her mother not to send her back to the house of
the accused.
One point of importance which might be
noticed here and which shows that whatever be the relations with her husband
and Ujvala, the picture presented by the witness is not totally correct because
if such a point of no return had already been reached, there was absolutely no
question of Birdichand and sending for the appellant and arranging a trip to
Ooty, Mysore and other place nor would have Manju agreed to go to these places.
The witness further stated that as soon as Manju came to know that Birdichand
had come to take her away she was shocked and continuously kept saying that she
was extremely afraid of going to her husband's house and that she should not be
sent back.
The behavioral attitude of Manju depicted by
the witness seems to us to be absolutely contradictory to and not at all in
consonance with her temperament, frame of mind, psychological approach to
things and innate habits.
That is why no reference had been made even
directly or indirectly in any of the letters written by 134 Manju, and she had
expressly requested both Anju and Vahini not to disclose anything to her
parents lest they may get worried and. distressed on her account. In other
words, Manju was a woman who despite her troubles and tribulations, sufferings
and travails, anxiety and anguish would never have thought of narrating her
woeful story to her parents and thereby give an unexpected shock to them. This
feeling is mentioned in the clearest possible terms in the letters (Exhs. 30,
32, 33) which we have already discussed. There is no reference at all in any of
the letters regarding suicidal pact or the illicit relationship of her husband
with Ujvala.
Another important fact which the High Court
has missed is that even according to the statement of this witness, the
appellant had asked his mother to send Shobha along with Manju to the hotel and
at that time he could not have been aware that Shobha would not be available.
Indeed, if he had an evil intention of insulting or injuring the feelings of
Manju by keeping Ujvala there he would never have asked his mother to send
Shobha also because then the matter was likely to be made public. This is
another inherent improbability which makes the whole story difficult to
believe.
Despite these serious developments both PW 2
and 20 tried to convince Manju to accept the assurances given by Birdichand
that no harm would come to her and if anything might happen they will take
proper care. We find if impossible to believe that the parents who had so much
love and affection for their daughter would, after knowing the circumstances,
still try to take the side of Birdichand and persuade her daughter to go to
Pune. Rameshwar (PW 2) should have told Birdichand point-blank that he would
not send Manju in view of the serious incidents that had happened, viz., the
suicidal pact, the cruel treatment of the appellant towards Manju, the constant
fear of death which Manju was apprehending, the illicit relationship between
the appellant and Ujvala, and the strong resistance of his daughter who was not
prepared to go Pune at any cost and was weeping and wailing all the time. On
the other hand, knowingly and deliberately they seem to have thrown their
beloved daughter into a well of death. The fact that Manju's parents tried to
console her and believed the assurance of Birdichand knowing full well the
history of the case shows that any statement made by Manju to her parents was
not of such great consequence as to harden their attitude. This is yet another intrinsic
circumstance Manju to which negatives the story of suicidal pact and the
invitation to 135 come to the Pearl Hotel and the manner in which she was
insulted in the presence of Ujvala. There is no doubt that relations between
the appellant and Manju were extremely strained, may-be due to his friendship
with Ujvala, she may not have felt happy in her marital home as she has clearly
expressed in her letters but she did not disclose anything of such great
consequence which would have shocked the parents and led them to resist her
going to Pune at any cost. This makes the version given by PWs 2 and 20
unworthy of credence.
We now proceed to take up the evidence of
PW-6, Anju, the sister of Manju. The statement of this witness is more or less
a carbon copy of the evidence of PW-20 which has been discussed above and,
therefore, it is not necessary to consider her evidence in all its details. So
far as the first visit is concerned, she fully supports her mother that Manju
was very happy as was expected of a newly married girl. When Manju came to Beed
around 2nd April 1982 she stayed there for 8-10 days and during that period the
witness noticed that she was somewhat dissatisfied and complained that her
husband used to return late at night.
She also complained against the callous
attitude of the other members of her husband's family. She also introduced the
story of Ujvala Kothari and corroborated what PW 20 had said which we have
discussed above. She also refers to the said suicidal pact and then to the fact
that Birdichand had come to take away Manju to Pune so that she may be able to
attend the betrothal ceremony of Shobha. Then she deposes to an incident which
appears to be wholly improbable. According to her, on the 3rd of June, 1982, PW
2 invited his two friends, Raju and Rath, for lunch at which Birdichandi was
also present, and told them that Manju was not prepared to go to Pune as she
was afraid to go there but Birdichand, alongwith his two friends, assured him
that nothing would happen. We do not think that in the course of things P-2
would be so foolish as to let the secret matters of the house known to others
than the parties concerned. Thereafter the witness proves the letters (Exhs. 30
and 32).
She stated one important statement to the
effect that on some occasions Manju had a talk with her mother in her presence.
Although Manju had requested Anju not to disclose anything to her parents yet
everything was made known to them, During cross-examination the witness was
asked-how as it that Manju was narrating these talks when the witness had been
asked not to disclose the 136 same to her parents, which she explained away by
saying that she did not ask Manju why she was disclosing these things to her
mother. No satisfactory answer to this question seems to have been given by
her. At another place, the witness states thus :
"I did not tell all these informations I
received from Manju to anybody. Nor anybody enquired from me till my statement
was recorded by the Police." Her evidence, therefore, taken as a whole is
subject to the same infirmity as that of PW 20 and must suffer the same fate.
PW-3, Rekha (who was addressed as `Vahini' in
Maju's letter (Ex. 33), states that on the first occasion when Manju came home
she was quite happy but during her second visit to Beed in the month of April,
1982 she did not find her so and Manju complained that her husband was avoiding
her to have a talk with her on one excuse or another. Manju also informed the
witness that the appellant had a girl- friend by name Ujvala and the witness
says that she tried to console Manju by saying that since her husband was a
Chemical Engineer he may have lot of friends. While referring to Exh. 33
(letter written to her by Manju) she stated that the only complaint made in
that letter was that her husband was not talking to her properly. She then
deposed to an incident which happened when on her way to Bombay when the
witness stayed at Pune for some time. She states that she had a talk with Manju
for about half-an-hour when she narrated the story of the suicidal pact. She
also stated that she was extremely afraid of the situation and almost broke
down in tears and wept.
The most important fact which may be noted in
her evidence is a clear pointer to the frame of mind and the psychotic nature
of Manju. At page 212 of Part I of the Paperbook while narrating the
relationship of her husband with Ujvala she says that the appellant lost his
temper and thereupon she spoke the following words to him :
,`I am not going to spare this, I will not
allow this, his bad relations even though a blot may come to our family and I
have decided likewise." These significant and pregnant words clearly show
that Manju was so much bored and disgusted with her life that she entertained a
spirit of revenge and told the witness that she was not going to 137 tolerate
this even though a blot may come to the family and that she had decided
likewise. This statement undoubtedly contains a clear hint that she had almost
made up her mind to end her life, come what may and thereby put to trouble her
husband and his family members as being suspect after her death. This appears
to be a culmination of a feeling which she had expressed in one of her letters
to Anju in the following words:
"Till I could control (myself), well and
good.
When it becomes impossible, some other way
will have to be evolved. Let us see what happens. All right." Similarly,
in her letter (Ex. 33) to this witness she gives a concealed hint "But
till that day it is not certain that I will be alive." Thus the feelings
of death and despair which she orally expressed to the witness at Pune seems to
have been fulfilled when on the morning of 12th June 1982 she was found dead.
The evidence of PW 4, Hiralal Ramlal Sarda,
is not that important. He merely states that in the last week of May 1982, PW 2
had called him and told him that Manju was being ill-treated by her husband and
therefore she was not prepared to go to her marital home. PW 2 also informed
him about the suicidal pact affair. As the witness was in a hurry to go to
Hyderabad he counselled PW 2 not to take any final decision in a hurry and that
Manju should not be sent to Pune with Birdichand until his return when a
decision may be taken. On return from Hyderabed he learnt that Birdichand had
already taken Manju to Pune and thereafter he left for Pune. Indeed, if the
matter was so grave and serious that a person like PW 4, who was a relation of
the appellant rather than that of PW 2, had advised him not to make haste and
take a final decision but wait until his return yet PW 2 seems to have spurned
his advice and sent Manju to Pune.
This shows that the matter was not really of
such great importance or urgency as to take the drastic step of making a blunt
refusal to Birdihchand about Manju's not going to Pune. This also shows that
the story of suicidal pact and other things had been introduced in order to
give a colour or orientation to the prosecution story.
Another fact to which this witness deposes in
the narration by the appellant about his having sexual act with his wife. We
have 138 already disbelieved this story as being hopelessly improbable and
against the cultural heritage of our country or of our nature and habits. This
is the only purpose for which this witness was examined and his evidence does not
advance the matter any further.
PW-5, Meena Mahajan, has also been examined
to boost up the story narrated by PW 2 and other witnesses. She was not at all
connected with the family of PW 2 but is alleged to be a friend of Manju and
she says that she found Manju completely disheartened and morose and she
started weeping and crying while narrating her said story. The witness goes on
to state that Manju was so much terrified of the appellant that she was afraid
of her life at his hands. No.
witness has gone to the extent of saying that
there was any immediate danger to Manju's life nor did Manju say so to PWs 2, 6
and 20. This witness appears to us to be more loyal than the king. Even
assuming that Manju was a friend of PW 6 but she never wrote to her any letter
indicating anything of the sort. For these reasons we are not satisfied that
this witness is worthy of credence.
A close and careful scrutiny of the evidence
of the aforesaid witnesses clearly and conspicuously reveals a story which is
quite, different from the one spelt out from the letters (Exhs. 30, 32 and 33).
In fact, the letters have a different tale to tell particularly in respect of
the following matters:- (1) There is absolutely no reference to suicidal pact
or the circumstances leading to the same, (2) there is no reference even to
Ujvala and her illicit relations with the appellant, (3) there is no mention of
the fact that the deceased was not at all willing to go to Pune and that she
was sent by force, (4) the complaints made in the letters are confined to
ill-treatment, loneliness, neglect and anger of the husband but no apprehension
has been expressed in any of the letters that the deceased expected imminent
danger to her life from her husband.
(5) In fact, in the letters she had asked her
sister and friend not to disclose her sad plight to her parents but 139 while
narrating the facts to her parents she herself violated the said emotional
promise which appears to us to be too good to be true and an after thought
added to strengthen the prosecution case.
(6) If there is anything inherent in the
letters it is that because of her miserable existence and gross ill-treatment
by her husband, Manju might have herself decided to end her life rather than
bother her parents.
We are therefore unable to agree with the
High Court and the trial court that the witnesses discussed above are totally
dependable so as to exclude the possibility of suicide and that the only
irresistible inference that can be drawn from their evidence is that it was the
appellant who had murdered the deceased.
Putting all these pieces together a general
picture of the whole episode that emerges is that there is a reasonable
possibility of Manju having made up her mind to end her life, either due to
frustration or desperation or to take a revenge on her husband for shattering
her dream and ill- treating her day-to-day.
Apart from the spirit of revenge which may
have been working in the mind of Manju, it seems to us that what may have
happened is that the sum total and the cumulative effect of the circumstances
may have instilled in her an aggressive impulse endangered by frustration of
which there is ample evidence both in her letters and her subsequent conduct.
In Encyclopedia of Crime and Justice (Vol. 4) by Sanford H. Kadish the author
mentions thus :
"Other psychologically oriented theories
ave viewed suicide as a means of handling aggressive impulses engendered by
frustration." Another inference that follows from the evidence of the
witness discussed is that the constant fact of wailing and weeping is one of
the important symptoms of an intention to commit suicide as mentioned by George
W. Brown and Tirril Harris in their book "Social Origins of
Depression" thus:- "1. Symptom data Depressed mood- 140
1. Crying
2. feeling miserable/looking miserable,
unable to smile or laugh
3. feelings of hopelessness about the future
4. suicidal thoughts
5. suicidal attempts Fears/anxiety/worry
15. psychosomatic accompaniments
16. tenseness/anxiety
17. specific worry
18. panic attacks
19. phobias Thinking
20. feelings of self-depreciation/nihilistic
delusions
21. delusions or ideas of reference
22. delusions of persecution/jealousy
23. delusions of grandeur
24. delusions of control/influence
25. other delusions e. g. hypochondriacal
worry
26. auditory hallucinations
27. visual hallucinations." Most of
these symptoms appear to have been proved as existing in Manju both from her
letters (Exhs. 30, 32 and 33) and from the evidence discussed.
We might hasten to observe here that in cases
of women of a sensitive and sentimental nature it has usually been observed
that if they are tired of their life due to the action of their kith and kin,
they become so desperate that they develop a spirit of revenge and try to
destroy those who had made their lives worthless and under this strong spell of
revenge sometimes they can go to the extreme limit of committing suicide with a
feeling that the subject who is the root cause of their malady is also
destroyed. This is what may have happened in this case. Having found her dreams
shattered to pieces Manju tried first to do her best for a compromise but the
constant ill-treatment and callous attitude of her husband may have driven 141
her to take revenge by killing herself so that she brings ruination and
destruction to the family which was responsible for bringing about her death.
We might extract what Robert J. Kastenbaum in his book 'Death, Society, and
Human Experience' has to say:
"Revenge fantasies and their association
with suicide are well known to people who give ear to those in emotional
distress." After a careful consideration and discussion of the evidence we
reach the following conclusions on point No. 1:
1) that soon after the marriage the relations
between Manju and her husband became extremely strained and went to the extent
that no point of return had been almost reached, 2) that it has been proved to
some extent that the appellant had some sort of intimacy with Ujvala which
embittered the relationship between Manju and him, 3) That the story given out
by PW 2 and supported by PW 20 that when they reached Pune after the death of
Manju they found appellant's weeping and wailing out of grief as this was
merely a pretext for shedding of crocodile tears, cannot be believed, 4) that
the story of suicidal pact and the allegation that appellant's illicit
relations with Ujvala developed to such an extreme that he was so much
infatuated with Ujvala as to form the bedrock of the motive of the murder of
Manju, has not been clearly proved, 5) the statement of PW 2 that the appellant
had told him that during the night on 11th June 1982 he had sexual act with the
deceased is too good to be true and is not believable as it is inherently
improbable, 6) that despite the evidence of PWs 2, 3, 6 and 20 if has not been
proved to our satisfaction that the matter had assumed such extreme proportions
that Manju refused to go to Pune with her father-in-law (Birdichand) at any
cost and yet she was driven by use of compulsion and persuasion to accompany him,
142 7) that the combined reading and effect of the letters (Exhs. 30, 32 and
33) and the evidence of PWs 2, 3, 4, 6 and 20 clearly reveal that the signs and
symptoms resulting from the dirty atmosphere and the hostile surroundings in
which Manju was placed is a pointer to the fact that there was a reasonable
possibility of her having committed suicide and the prosecution has not been
able to exclude or eliminate this possibility beyond reasonable doubt.
We must hasten to add that we do not suggest
that this was not a case of murder at all but would only go to the extent of
holding that at least the possibility of suicide as alleged by the defence may
be there and cannot be said to be illusory.
8) That a good part of the evidence discussed
above, is undoubtedly admissible as held by us but its probative value seems to
be precious little in view of the several improbabilities pointed out by us
while discussing the evidence.
We might mention here that we had to
reappreciate the evidence of the witnesses and the circumstances taking into
account the psychological aspect of suicide as found in the psychotic nature
and character of Manju because these are important facts which the High Court
completely overlocked.
It seems to us that the High Court while appreciating
the evidence was greatly influenced by the fact that the evidence furnished by
the contents of the letters were not admissible in evidence which, as we have
shown, is a wrong view of law, We now come to the second limb- perhaps one of
the most important limbs of the prosecution case viz., the circumstance that
the appellant was last seen with the deceased before her death. Apparently, if
proved, this appears to be a conclusive evidence against the appellant but here
also the High Court has completely ignored certain essential details which cast
considerable doubt on the evidence led by the prosecution on this point.
The question of the appellant having been
last seen with the deceased may be divided into three different stages:
1) The arrival of Anuradha and her children
alongwith Manju at Takshila apartments, followed by the arrival of 143 the
appellant and his entry into his bedroom where Anuradha was talking to Manju,
2) the calling of PW 29 by A-2 followed by the appellant and his brother's going
out on a scooter to get Dr. Lodha and thereafter Dr. Gandhi.
3) Sending for Mohan Asava (PW 30) and the
conversation between the appellant, Birdichand and others as a result of which
the matter was reported to the police.
Although the aforesaid three stages of this
circumstance cannot technically be called to mean that the accused was last
seen with the deceased but the three parts combined with the first circumstance
might constitute a motive for the murder attributed to the appellant.
From a perusal of the judgment of the High
Court on these points, it appears that the High Court has made a computerise
and mathematical approach to the problem in fixing the exact time of the
various events which cannot be correct as would appear from the evidence of the
witnesses, including Dr Banerjee (PW 33) .
The evidence of PW 7, the motor rickshaw
driver shows that on the night of the 11th of June he had brought the deceased
alongwith Anuradha and others and dropped them near the Takshila apartments at
about 11.00 p.m. The witness was cross-examined on several points but we shall
accept finding of the High Court on the fact that on the 11th of June 1982 the
witness had dropped the persons, mentioned above, at about 11.00 p.m. The rest
of the evidence is not germane for the purpose of this case. It may, however,
be mentioned that one should always give some room for a difference of a few
minutes in the time that a layman-like PW 7 would say. We cannot assume that
when the witness stated that he had dropped Manju and others at 11.00 p.m., it
was exactly 11.00 p.m.--it would have been 10-15 minutes this way or that way.
His evidence is only material to show the
approximate time when Manju returned to the apartments.
The next witness on this point is PW-28, K.N.
Kadu.
This witness corroborates PW-7 and stated he
had heard the sound of a rickshaw near the apartments when the wife of A- 2,
Manju and 3 children entered the apartments and went to their rooms. He 144
further says that after about 15 minutes he saw the appellant coming on a
scooter and while he was parking his scooter the witness asked him why did he
come so late to which he replied that he was busy in some meeting. This would
show that the appellant must have arrived at the apartments near about 11.30 or
11.45 p.m. It is very difficult to fix the exact time because the witness
himself says that he had given the timings approximately. The High Court was,
therefore, not justified in fixing the time of arrival of Manju and party or
the appellant with almost mathematical precision for that would be a most
unrealistic approach. The High Court seems to have speculated that Manju must
have died at 12.00 a.m., that is to say, within 15-20 minutes of the arrival of
the appellant. It is, however, impossible for us to determine the exact time as
to when Manju died because even Dr. Banerjee says in his evidence that the time
of death of the deceased was between 18 to 36 hours which takes us to even
beyond past 12 in the night. At any rate, this much is certain that Manju must
have died round about to 2.00 a.m. because when Dr. Lodha arrived at 2.45 a.m.
he found her dead and he had also stated that rigor mortis had started setting
in, It is. therefore, difficult to fix the exact time as if every witness had a
watch which gave correct and exact time. Such an inference is not at all called
for.
The third stage of this matter is that while
the witness was sleeping he heared the sound of the starting of a scooter and
got up from his bed and saw appellant and A-2 going away. Therefore, he found
7-8 persons coming and going on their scooters. The High Court seems to suggest
that this must have happened by about 1.30 p.m. Even so, this does not prove
that Manju have died at midnight. As the witness had been sleeping and was only
aroused by the sound of scooters, it would be difficult to fix the exact time
when he saw the appellant and A-2 going out on their scooters. His evidence,
therefore, was rightly relied upon by the High Court in proving the facts
stated by him.
PW-29, B.K. Kadu, who was serving as a
watchman at the Takshila apartments says that near about the midnight he was
called by Rameshwar, A-2 and on hearing the shouts he went to flat No. 5. He
further says that A-2 directed him to unbolt or unchain the door but the door
was not found closed from inside and hence A-2 went out and returned after some
time. While the witness was 145 standing at the door A-2 returned and after his
return the witness also came back to his house and went to sleep.
Perhaps the witness was referring to the
incident when A-1 and A-2 had gone on scooter to fetch Dr. Lodha. During
cross-examination the witness admitted that he did not possess any watch and
gave the timings only approximately.
We shall accept his evidence in toto but that
leads us nowhere.
This is all the evidence so far as the first
stage of the case is concerned and, in all probability, it does not at all
prove that A-1 had murdered the deceased. On the other hand, the circumstances
proved by the three witness are not inconsistent with the defence plea that
soon after entering the room Manju may have committed suicide.
Part II of this circumstance relates to the
coming of Dr. Lodha and then Dr. Gandhi on the scene of occurrence and we
accept their evidence in toto. Dr. Lodha was a family doctor of the appellant's
family and it was quite natural to send for him when the appellant suspected
that his wife was dead. Although Dr. Lodha (PW 24) was a family doctor of the
appellant's family yet he did not try to support the defence case and was frank
enough to tell the accused and those who were present there that it was not
possible for him to ascertain the cause of death which could only be done by a
postmortem. In other words, he indirectly suggested that Manju's death was an
unnatural one, and in order to get a second opinion he advised that Dr. Gandhi
(PW 25) may also be summoned. Accordingly, Dr. Gandhi was called and he
endorsed the opinion of Dr. Lodha. Such a conduct on the part of the appellant
or the persons belonging to his family is wholly inconsistent with the
allegation of the prosecution that the appellant had murdered the deceased.
The High Court seems to have made one
important comment in that why Dr. Lodha and Dr. Gandhi were called from some
distance when Dr. Kelkar, who was a skin specialist and another Doctor who was
a child expert, were living in the same building. This comment is neither here
nor there. It is manifest that Birdichand was a respectable person of the town
and when he found that his daughter-in-law had died he would naturally send for
his family doctor rather then those who were not known to him.
146 It appears that PW 30 Mohan Asava was
also summoned on telephone and when he came at the scene of occurrence he found
A-2, Birdichand sitting on the floor of the room and Bridichand hugged him out
of grief, and told him that Manju had died of shock and the Doctors were not
prepared to give a death certificate.
In order to understand the evidence of this
witness it may be necessary to determine the sequence of events so for as PW 30
is concerned. The witness has stated that while he was sleeping he was aroused
from his sleep by a knock at the door by Ram Vilas Sharda (brother of
appellant) at about 4.00 or 4.15 a.m. Ram Vilas told him that Manju had died and
the doctors were not prepared to give any death certificate.
After having these talks the witness,
alongwith Ram Vilas, proceeded to the apartments and remained there till 5.15.
a.m. Then he returned to his house, took bath
and at about 6.30 a.m. he received a telephone call from Ram Vilas for lodging
a report with the police with the request that the time of death should be
given as 5.30 a.m. Consequently, he reached the police station near about 7.00
or 7.15 a.m. and lodged a report stating that Manju had died at 5.30 a.m.
This witness appears to be of doubtful
antecedents and, therefore, his evidence has to be taken with a grain of salt.
He admitted in his statement at p. 387 that some proceedings about evasion of
octroi duty were pending against him in the Court. He also admitted that he was
convicted and sentenced to 9 months R.I under the Food Adulteration Act in the
year 1973.
Apart from this it appears that most of the
statements which he made in the Court against Birdichand and the other accused,
were not made by him before the police. These statements were put to him and he
denied the same but they have been proved by the Investigation Officer, PW 40
whose evidence appears at p. 521 of Part II of the printed paperbook. These
belated statements made in the Court may be summarised thus:
While in his statement before the court the
witness at p. 386 (para 19) states that the death of Manju was suspicious yet
he made no such statement before the police on being confronted by the
statement of PW 40. Another important point on which his statement does not
appear to be true is that the dominent fact 147 mentioned to him by Birdichahd
and others was that the doctors were not prepared to issue death certificate
but he did not say so before the police. Similarly, he deposed in the court
about the statement made to him by Birdichand that he would lose his prestige
and therefore the body should be cremated before 7.00 a.m, but he advised him
not to do so unless he has informed the police otherwise his whole family would
be in trouble. Almost the entire part of his evidence in para 5 at p. 381
appears to be an afterthought, as PW 40 stated thus:
"I recorded the statement of PW 30 Mohan
Asava. He did not state before me that death of Manju was suspicious. He did
not state before me that Accused No. 3 informed him that the Doctors were not
prepared to issue the death certificate. He did not state before me that the
demand was made of the death certificate from the Doctors or the Doctors
refused to give the same.
During his statement this witness did not
make the statements as per para No. 5 excluding the portions from A to F of his
examination-in-chief." The portions referred to as 'A to F' in para No. 5
of examination-in-chief of PW 30 may be extracted thus:
"Birdichand then started telling me that
Manju had died on account of shock and that-----he said that she died of heart
attack------under any circumstance he wanted to cremate Manju before 7.O'
clock------when he said that he would spend any amount but wanted to cremate
her before 7.00 a.m." This statement does not appear to be true for the
following reasons.
(a) Birdichand knew full well that PW 30 was
a police contact constable and as he was not prepared to persuade the doctors
to give a death certificate, his attitude was hardly friendly as he was
insisting that the matter should be reported to the police.
It is, therefore, difficult to believe that
Birdichand would take such a great risk in laying all his cards on the table
knowing full well that the witness was not 148 so friendly as he thought and
therefore he might inform the police; thereby he would be in a way digging his
own grave.
(b) On a parity of reasoning it would have
been most improbable on the part of the appellant, after having decided to
report the matter to the police, to ask PW 30 to report the time of death as
5.30 a.m. knowing full well his attitude when he came to the apartments.
It is not at all understandable how the
witness could have mentioned the time of Manju's death as 5.30 a.m. or, at any
rate, when her death was known to her husband and when he himself having gone
to the apartments near about 4.15 a.m. knew full well that Manju had died
earlier and that Dr.
Lodha and Dr. Gandhi had certified the same
and advised Birdichand to report the matter to the police. In the original
Ex-120 (in Marathi language), it appears that the time of death given by the
witness is 'Pahate' which, according to Molesworth's Marathi-English Dictionary
at p. 497, means 'The period of six ghatika before unrise, the dawn' i. e.,
about 2 hours 24 minutes before sunrise (one ghatika is equal to 24 minutes).
This would take us to near about 3.00 a.m. Either there is some confusion in
the translation of the word 'Pahate' or in the words '5.30 a.m.', as mentioned
in the original Ex. 120. However, nothing much turns on this except that
according to the witness Manju must have died around 3.00 a.m. which is
consistent with the evidence of Dr. Lodha that when he examined Manju at about
2.30 a.m. he found her dead and rigor mortis had already started setting in.
We are not concerned here with the
controversy whether the report was admissible under s. 154 or s. 174 of the
Code of Criminal Procedure but the fact remains that the policd did receive the
information that the death took place at 5.30 a.m. The High Court seems to have
made a capital out of this small incident and has not made a realistic approach
to the problem faced by Birdichand and his family. Being a respectable man of
the town, Birdichand did not want to act in a hurry lest his reputation may
suffer and naturally required some time to reflect and consult his friends
before taking any action. The allegation that A-3 told him to report the time
of death as 5.30 a.m. is not at all proved but is based on the 149 statement of
PW 30, before the police. Thus, the approach made by the High Court to this
aspect of the matter appears to be artificial and unrealistic as it failed to
realise that the question of the time of death of the deceased as 5.30 a.m. could
never have been given by the appellant or any other accused because they knew
full well that the two doctors had examined the whole matter and given the time
of death as being round about 1.30 a.m. Having known all these facts how could
anyone ask PW 30 to give the time of death at the police station as 5.30 a.m.
Thus, it will be difficult for us to rely on
the evidence of such a witness who had gone to the extent of making wrong
statements and trying to appease both Birdichand and the prosecution, and,
therefore, his evidence does not inspire any confidence.
The last part of the case on this point is
the evidence of PWs 2 and 4, where the appellant is said to have told them that
he had sexual intercourse with his wife near about 5.00 a.m. on the 12th June
1982. Apart from the inherent improbability in the statement of the appellant,
there is one other circumstance which almost clinches the issue. It appears
that Kalghatgi (PW 20), Inspector-in-charge of the police station made a query
from Dr. Banerjee which is extracted below:
Whether it can be said definitely or not as
to whether sexual intercourse might have taken just prior to death ?" The
above query was made in Ex. 129 and the answer of the Doctor appears in Ex. 187
which is extracted below:
"From clinical examination there was no
positive evidence of having any recent sexual, intercourse just prior to
death." This positive finding of the Doctor therefore knocks the bottom
out of the case made out by the prosecution that the appellant had told PWs 2
and 4 about having sexual intercourse with his wife. Unfortunately, however,
the High Court instead of giving the benefit of this important circumstance to
the accused has given the benefit to the prosecution which is yet another error
in the approach made by the Eight Court while assessing the prosecution
evidence.
Having regard to the very short margin of
time between the arrival of the appellant in his bed-room and the death of
Manju, it seems 150 to be well-nigh impossible to believe that he would try to
have sexual intercourse with her. This circumstance, therefore, falsifies the
evidence of PWs 2 and 4 on this point and shows the extent to which the
witnesses could go to implicate the appellant.
Finally, in view of the disturbed nature of
the state of mind of Birdichand and the catastrophe faced by him and his
family, it is difficult to believe that the grief expressed and the tears shed
by the appellant when PW 2 met him could be characterised as fake. If it is
assumed that the accused did not commit the murder of the deceased then the
weeping and wailing and expressing his grief to PW 2 would be quite natural and
not fake.
There are other minor details which have been
considered by the High Court but they do not appear to us to be very material.
Taking an overall picture on this part of the
prosecution case the position seems to be as follows:
(1) if the accused wanted to give poison
while Manju was wide awake, she would have put up stiffest possible resistance
as any other person in her position would have done. Dr. Banerjee in his
postmortem report has not found any mark of violence or resistance. Even if she
was overpowered by the appellant she would have shouted and cried and attracted
persons from the neighbouring flats which would have been a great risk having
regard to the fact that some of the inmates of the house had come only a
short-while before the appellant.
(2) Another possibility which cannot be ruled
out is that potassium cyanide may have been given to Manju in a glass of water,
if she happened to ask for it. But if this was so, she being a chemist herself
would have at once suspected some foul play and once her suspicion would have
arisen it would be very difficult for the appellant to murder her.
(3) The third possibility is that as Manju
had returned pretty late to the flat she went to sleep even before the arrival
of the appellant and then he must have tried to 151 forcibly administer the
poison by the process of mechanical suffocation, in which case alone the
deceased could not have been in a position to offer any resistance. But this
opinion of the Doctor has not been accepted by the High Court which, after a
very elaborate consideration and discussion of the evidence, the circumstances
and the medical authorities, found that the opinion of the Doctor that Manju
died by mechanical suffocation has not been proved or, at any rate, it is not
safe to rely on such evidence. In this connection, we might refer to the
finding of fact arrived at by the High Court on this point:
"In view of the above position as is
available from the evidence of Dr. Banerjee and from the observations made by
the medical authorities it will not be possible to say that the existence of
the dark red blood in the right ventricle exclusively points out the mechanical
suffocation particularly when such phenomenon is available in cases of
poisoning by potassium cyanide." (PB p. 147-48) "In view of this
answer it will not be possible to say conclusively that this particular symptom
of observation is exclusively available in case of mechanical suffocation.
Thus we have discussed all the seven items on
which Dr. Banerjee has relied for the purpose of giving an opinion that there
was mechanical suffocation. In our view, therefore, those 7 findings would not
constitute conclusive date for the purpose of holding that there was mechanical
suffocation. As the 7 findings mentioned above can be available even in the
case of cyanide poisoning we think that it would not be safe to rely upon these
circumstances for recording an affirmative finding that there was mechanical
suffocation. As the 7 findings mentioned above can be available even in the
case of cyanide poisoning we think that it would not be safe to rely upon these
circumstances for recording an affirmative finding that there was mechanical
suffocation." (P.150-151) It is not necessary for us to repeat the
circumstances relied upon by the High Court because the finding of fact speaks
for itself.
152 This being the position, the possibility
of mechanical suffocation is completely excluded.
(4) The other possibility that may be thought
of is that Manju died a natural death. This also is eliminated in view of the
report of the Chemical Examiner as confirmed by the postmortem that the
deceased had died as a result of administration of potassium cyanide.
(5) The only other reasonable possibility
that remains is that as the deceased was fed up with the maltreatment by her
husband, in a combined spirit of revenge and hostility after entering the flat
she herself took potassium cyanide and lay limp and lifeless. When the
appellant entered the room he must have thought that as she was sleeping she
need not be disturbed but when he found that there was no movement in the body
after an hour so, his suspicion was roused and therefore he called his brother
from adjacent flat to send for Dr. Lodha.
In these circumstances, it cannot be said
that a reasonable possibility of the deceased having committed suicide, as
alleged by the defence, can be safely ruled out or eliminated.
From a review of the circumstances mentioned
above, we are of the opinion that the circumstance of the appellant having been
last seen with the deceased has not been proved conclusively so as to raise an
irresistible inference that Manju's death was a case of blatant homicide.
This now brings us to an important chapter of
the case on which great reliance appears to have been placed by Mr.
Jethmalani on behalf of the appellant.
Unfortunately, however, the aspect relating to interpolations in the postmortem
report has been completely glossed over by the High Court which has not
attached any importance to the infirmity appearing in the medical evidence in
support of the said interpolations. Although the learned counsel for the
appellant drew our attention to a number of interpolations in the postmortem
report as also the report sent to the Chemical Examiner, we are impressed only
with two infirmities which merit 153 serious consideration. To begin with, it
has been pointed out that in the original postmortem notes which were sent to
Dr. Banerjee (PW 33) for his opinion, there is a clear interpolation by which
the words `can be a case of suicidal death' appear to have been scored out and
Dr. Banerjee explained that since he had written the words `time since death'
twice, therefore, the subsequent writing had been scored out by him. In other
words, the Doctor clearly admitted the scoring out of the subsequent portion
and we have to examine whether the explanation given by him is correct. In
order to decide this issue we have examined for ourselves the original
postmortem notes (Ex. 128) where the writing has been admittedly scored out by
Dr. Banerjee. The relevant column against which the scoring has been done is
column. No. 5 which runs thus:
"5. Substance of accompanying Report
from Police officer or Magistrate, together with the date of death, if known.
Supposed cause of death, or reason for examination." The last line
indicates that the Doctor was to note two things-(1) the date of death, if
known, and (2) the supposed cause of death. This document appears to have been
written by PW 33 on 12.6.82 at 4.30 p.m. The relevant portion of the words
written by the Doctor are `time since dealt' which were repeated as he states
in his statement. After these words some other words have been admittedly
scored out and his (PW 33) explanation was that since he had written `time
since death' twice, the second line being a repetition was scored out. A bare
look at Ex. 128 does not show that the explanation given by the Doctor is
correct. We have ourselves examined the said words with the help of a
magnifying glass and find that the scored words could not have been `time since
death'. The only word common between the line scored out and the line left
intact is `death'. To us, the scored out words seem to be `can be a case of
suicidal death'. Dr Banerjee however stuck to his original stand which is not
supported by his own writing in the document itself. It seems' to us that at
the first flush when he wrote the postmortem notes it appeared to him that no
abnormality was detected and that it appears to be a case of suicide rather
than that of homicide. This, therefore, if the strongest possible circumstance
to make the defence highly probable, if not certain. Furthermore, the Doctors's
explanation that the scored words were "time since death", according
to the said explanation, the scored words ore only three whereas 154 the
portion scored out contains as many as seven words.
Hence the explanation of the Doctor is not
borne out from the document.
It is true that the Doctor reserved his
opinion until the chemical examiner's report but that does not answer the
question because in column No.5 of postmortem note Dr.
Banerjee has clearly written "can be a
case of suicidal death" which indicates a that in the absence of the
report of the chemical examiner, he was of the opinion that it could have been
a case of suicide. In his evidence, PW 33 stated that in Exh. 128 in column No.
5 the contents scored out read `time since death' and since it was repeated in
the next line, he scored the words in the second line.
Despite persistent cross-examination the
Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid
that this matter was of vital importance and we expected the High Court to have
given serious attention to this aspect which goes in favour of the accused.
Another interpolation pointed out by the
learned counsel is regarding position of tongue as mentioned in Exh. 134. In
the original while filling up the said column the Doctor appears to have scored
out something; the filled up entry appears thus-`mouth is closed with tip
(something scored out) seen caught between the teeth'. But in the carbon copy
of the report which was sent to the Chemical Examiner (Exh. 132) he has added
`caught between the teeth' in ink but in the original there is something else.
This is fortified by the fact that the copy of the report actually sent to the
chemical examiner does not contain any interpolation against the said column
where the filled up entry reads `Inside mouth'.
The combined effect of these circumstances
show that Dr. Banerjee (PW33) tried to introduce some additional facts
regarding the position of the tongue. Perhaps this may be due to his final
opinion that the deceased died due to mechanical suffocation which might lead
to the tongue being pressed between the teeth. This, however, throws a cloud of
doubt on the correctness or otherwise of the actual reports written by him and
the one that was sent to the Chemical Examiner. It is obvious that in the
carbon copy who was retained by the Doctor, the entries must have been made
after the copy was sent to the Chemical Examiner. However, this circumstance is
not of much consequence because the opinion of the Doctor that Manju died by
forcible administration of potassium cyanide or by the process of mechanical
suffocation has not been proved.
155 This aspect need not detain us any
further because the High Court has not accepted the case of mechanical
suffocation.
So far as the other findings of Dr. Banerjee
are concerned we fully agree with the same. A number of comments were made on
behalf of the appellant about Dr. Banerjee's integrity and incorrect reports
but subject to what we said, we do not find any substance in those contentions.
In para 90 of its judgment the High Court has
given a number of circumstances which according to it, go to prove the
prosecution case showing that the appellant had administered the poison during
the night of 11th June, 1982.
These circumstances may be extracted thus:
(1) In the bed-room Manju died of poisoning
between 11.30 p.m. and 1. a.m. in the night between 11/12th June, 1982.
(2) Accused No. 1 was present in that bed
room since before the death of Manju i.e. since about 11.15 p.m.
(3) Accused No, 1 did not return to the flat
at 1.30 a.m or 1.45 a.m. as alleged.
(4) The conduct of accused No. 1 in not
calling for the immediate help of Dr. Shrikant Kelkar and/or Mrs. Anjali Kelkar
is inconsistent with his defence that he felt suspicious of the health of Manju
when he allegedly returned to the flat at 1.30 a.m.
(5) In different conduct of accused No. 1
when Dr. Lodha and Dr. Gandhi went to the flat in Takshila apartment, Accused
No. 1 did not show any anxiety which one normally finds when the doctor comes
to examine the patient. Accused No. 1 should have accompanied the doctors when
they examined Manju and should have expressly or by his behaviour disclosed his
feelings about the well being of his wife. It was also necessary for him to disclose
the alleged fact that he saw Manju in a suspicious condition when he returned
at about 1.30 a.m. Or so.
(6) An attempt of Birdichand to get the
cremation of Manju done before 7 a. m. On 12. 6 82 even by spending any amount
for that purpose. This conduct though 156 of Birdichand shows the conduct of a
person to whom Accused No. 1 had gone and informed as to what had happened.
(7) Delay and false information to police at
the hands of Mohan Asava. Though the information is given by Mohan as per the
phone instructions of accused No. 3 it is, presumed that accused No. 1 must
have told accused No. 3 about the incident and on that basis accused No.3 gave
instructions to Mohan Asava.
(8) Accused No. 1 himself does not take any
action either personally or through somebody else to give correct information
to police.
(9) Arrangement of the dead body to make show
that Manju died a peaceful and natural death.
(10) Accused No. 1 has a motive to kill Manju
as he wanted to get rid of her to continue relations with Ujvala.
(11) Absence of an anklet on left ankle of
Manju is inconsistent with the defence that Manju committed suicide.
(12) The conduct of the accused in concealing
the anklet in the fold of the Chaddar is a Conduct of a guilty man.
(13) The door of the bedroom was not found
bolted from inside. This would have been normally done by Manju if she had
committed suicide.
(14) Potassium cyanide must not have been
available to Manju.
(15) Manju was 4 to 6 weeks pregnant. This is
a circumstance which would normally dissuade her from committing suicide.
(16) Denial of the part of accused No. 1 of
admitted or proved facts.
(17) Raising a false plea of absence from the
bedroom at the relevant time. (PP. 152-155) 157 We have already discussed most
of the circumstances extracted above and given our opinion, and have also fully
explained the effect of circumstances Nos. 1,2,3,4,5 and 6.
We might again even at the risk of repetition
say that too much reliance seems to have been placed by the High Court on circumstance
No. 4 as the appellant did not immediately call for Dr. Shrikant Kelkar (PW 26)
and Dr. (Mrs.) Anjali Kelkar (PW 27). In a matter of this magnitude it would be
quite natural for the members of the appellant's family to send for their own
family doctor who was fully conversant with the ailment of every member of the
family. In these circumstances there was nothing wrong if the appellant and his
brother went to a distance of 11/2 Km. to get Dr. Lodha.
Secondly, Dr. Shrikant Kelkar was skin
specialist whereas Dr. (Mrs) Anjali Kelkar was a Paediatrician and the
appellant may have genuinely believed that as they belonged to different
branches, they were not all suitable to deal with such a serious case. The High
Court was, therefore, wrong in treating this circumstance as an incriminating
conduct of the appellant.
Circumstance No. 5 is purely conjectural
because as soon as Dr. Lodha came he examined Manju and advised that Dr. Gandhi
be called. We fail to understand what was the indifferent conduct of the
appellant when he had sent for the two Doctors who examined the deceased. The
appellant was in the same room or rather in an adjacent room when the deceased
was being examined. From this no inference can be drawn that the appellant was
indifferent to the state in which Manju was found.
As regards circumstance No. 6 we have already
explained this while dealing with the evidence of Mohan Asava, PW 30.
As regards circumstance No. 7, the High Court
has presumed that there being no dependable evidence that the information given
to the police by PW 30 was false and that the appellant must have told A-3
about the incident on the basis of which he gave instructions to PW 30. This is
also far from the truth as has been pointed out by us while dealing with the evidence
of PW 30.
Circumstance No. 8 is that PW 30 was asked to
report the matter to the police. When the dead body was lying in the flat what
action could the appellant have taken except reporting the matter to the police
through one of his known persons. So far as 158 circumstances Nos. 9 and 10 are
concerned, they do not appear to us to be of any consequence because, as shown
by us, from a reading of the letters (Exhs. 30,32 and 33) and the conduct of
the appellant, we do not find any evidence of a clear motive on the part of the
appellant to kill Manju.
Circumstances Nos. 11 and 12 are also of no
assistance to the prosecution because whether the anklet was in the chaddar or
elsewhere is wholly insignificant and does not affect the issue in question at
all. Circumstance No. 13 is also speculative because if the bedroom was not
found bolted from inside that would itself not show that Manju could not have
committed suicide. Various persons may react to circumstances in different
ways. When Manju entered her bedroom her husband had not come and since she
went to sleep she may not have bolted the door from inside to enable her
husband to enter the room. As regards circumstance No. 14, the High Court has
overlooked a very important part of the evidence of PW 2 who has stated at page
178 of part I of the printed paperbook thus:
"The plastic factory at Beed is a
partnership concern in which two sons of Dhanraj, my wife and sister-in-law,
i.e., brother's wife are partners." Dr. Modi's Medical Jurisprudence and
Texicology (19th Edn.) at page 747 shows that `Cyanide is also used for making
basic chemicals for plastics'. Apart from the fact that the High Court in
relying on this circumstance has committed a clear error of record, it is an
additional factor to show that cyanide could have been available to Manju when
she visited Beed for the last time and had stayed there for more than a week.
Circumstance No.15-the fact that Manju was 4
to 6 weeks pregnant would dissuade Manju from committing suicide is also purely
speculative. A pregnancy of 4 to 6 weeks is not very serious and can easily be
washed out. Moreover, when a person has decided to end one's life these are
matters which do not count at all. On the other hand, this circumstance may
have prompted her to commit suicide for a child was born to her, in view of her
ill-treatment by her husband and her in-laws, the child may not get proper
upbringing. Any way, we do not want to land ourselves in the field of surmises
and conjectures as the High Court has done.
159 Circumstance No. 17 is wholly irrelevant
because the prosecution cannot derive any strength from a false plea unless it
has proved its case with absolute certainty.
Circumstance No.17 also is not relevant
because there is no question of taking a false plea of absence from the bedroom
at the relevant time as there is no clear evidence on this point.
Apart from the aforesaid comments there is
one vital defect in some of the circumstances mentioned above and relied upon
by the High Court, viz., circumstances Nos.
4,5,6,8,9,11,12,13,16, and 17. As these
circumstances were not put to the appellant in his statement under s.313 of the
Criminal Procedure Code they must be completely excluded from consideration
because the appellant did not have any chance to explain them. This has been
consistently held by this Court as far back as 1953 where in the case of Fateh
Singh Bhagat Singh v. State of Madhya Pradesh(1) this Court held that any
circumstance in respect of which an accused was not examined under s. 342 of the
Criminal procedure code cannot be used against him ever since this decision.
there is a catena of authorities of this Court uniformly taking the view that
unless the circumstance appearing against an accused is put to him in his
examination under s.342 of the or s.313 of the Criminal Procedure Code, the
same cannot be used against him. In Shamu Balu Chaugule v. State of
Maharashtra(2) this Court held thus:
"The fact that the appellant was said to
be absconding not having been put to him under section 342, Criminal Procedure
Code, could not be used against him." To the same effect is another
decision of this Court in Harijan Megha Jesha v. State of Gujarat (3) where the
following observation were made:
"In the first place, he stated that on
the personal search of the appellant, a chadi was found which was blood stained
and according to the report of the serologist, it contained human blood.
Unfortunately, however, as this circumstance
was not put to the accused in his statement 160 under section 342, the prosecution
cannot be permitted to rely on this statement in order to convict the
appellant.':
It is not necessary for us to multiply
authorities on this point as this question now stands concluded by several
decision of this Court. In this view of the matter, the circumstances which
were not put to the appellant in his examination under s.313 of the Criminal
Procedure Code have to be completely excluded from consideration.
We might mention here an important argument
advance by counsel for the appellant and countered by the Additional Solicitor
General. It was argued before the High Court that it was highly improbable that
if the betrothal ceremony of appellant's sister, which was as important as the
marriage itself, was going to be performed on the 13th of June, would the
appellant clouse a day before that for murdering his wife and thereby bring
disgrace and destruction not only to his family but also to her sister. We have
already adverted to this aspect of the matter but it is rather interesting to
note how the High Court has tried to rebut this inherent improbability, on the
ground that in a case of administration of poison the culprit would just wait
for an opportunity to administer the same and once he gets the opportunity he
is not expected to think rationally but would commit the murder at once. With
due respect to the Judges of the High Court, we are not able to agree with the
somewhat complex line of reasoning which is not supported by the evidence on
record. There is clear evidence, led by the prosecution that except for a week
or few days of intervals, Manju always used to live with her husband and she
had herself complained that he used to come late at night.
Hence, as both were living alone in the same
room for the last four months there could be no dearth of any opportunity on
the part of the appellant to administer poison if he really wanted to do so. We
are unable to follow the logic of the High Court's reasoning that once the
appellant got an opportunity he must have clung to it. The evidence further
shows that both Manju and appellant had gone for a honeymoon outside Pune and
even at that time he could have murdered her and allowed the case to pass for a
natural death.
However, these are matters of conjectures.
The Additional Solicitor-General realising
the hollowness of the High Court's argument put it in a different way. He
submitted that as the deceased was 4-6 weeks pregnant the appellant realised
161 that unless the deceased was murdered at the behest it would become very
difficult for him to murder her, even if he had got an opportunity, if a child
was born and then he would have to maintain the child also which would have
affected his illicit connections with Ujvala. This appears to be an attractive
argument but on close scrutiny it is untenable.
If it was only a question of Manju's being
4-6 weeks pregnant before her death, the appellant could just as well have
waited just for another fortnight till the marriage of his sister was over
which was fixed for 30th June, 1982 and then either have the pregnancy
terminated or killed her.
Moreover, it would appear from the evidence
of PW 2 (P.176) that in his community the Kohl ceremony is not merely a formal
betrothal but a very important ceremony in which all the near relations are
called and invited to attend the function and a dinner is hosted. We might
extract what PW 2 says about this:
"At the time of Kohl celebration of
Manju, on 2.8.1981 my relatives i.e. my sister from outside had attended this
function and many people were invited for this function. A dinner was also
hosted by me. In that function the father of the bridegroom is required to
spend for the dinner while the presentations made to the bride are required to
be given or donned at the expenses of the side of bridegroom This programme is
not attended by the bridegroom." (P.176) As Birdichand and others were
made co-accused in the case they were unable to give evidence on this point but
it is the admitted case of both the parties that the accused belonged to the
same community as PW 2. In these circumstances, it is difficult to accept the
argument that the appellant would commit the murder of his wife just on the eve
of Kohl ceremony, which he could have done the same long before that ceremony
or after the marriage as there was no hurry nor any such impediment which would
deny him any opportunity of murdering his wife.
We now come to the nature and character of
the circumstantial evidence. The law on the subject is well settled for the
last 6-7 decades and there have been so many decisions on this point that the
principles laid down by courts have become more or less axiomatic.
162 The High Court has referred to some
decisions of this Court and tried to apply the ratio of those cases to the
present case which, as we shall show, are clearly distinguishable. The High
Court was greatly impressed by the view taken by some courts, including this
Court, that a false defence or a false plea taken by an accused would be an
additional link in the various chain of circumstantial evidence and seems to
suggest that since the appellant had taken a false plea that would be
conclusive, taken along with other circumstances, to prove the case. We might,
however, mention at the outset that this is not what this Court has said. We
shall elaborate this aspect of the matter a little later It is well settled
that the prosecution must stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence. This is trite law and no
decision has taken a contrary view. What some cases have held is only this:
where various links in a chain are in themselves complete than a false plea or
a false defence may be called into aid only to lend assurance to the Court. In
other words, before using the additional link it must be proved that all the
links in the chain are complete and do not suffer from any infirmity. It is not
the law that where is any infirmity or lacuna in the prosecution case, the same
could be cured or supplied by a false defence or a plea which is not accepted
by a Court.
Before discussing the cases relied upon by
the High Court we would like to cite a few decisions on the nature, character
and essential proof required in a criminal case which rests on circumstantial
evidence alone. The most fundamental and basic decision of this Court is
Hanumant v.
The State of Madhya Pradesh.(1) This case has
been uniformly followed and applied by this Court in a large number of later
decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to
extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases
where the evidence is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the 163 first instance be
fully established and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave any
reasonable ground far a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability the act must
have been done by the accused." A close analysis of this decision would
show that the following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court
indicated that the circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal distinction between
'may be proved' and 'must be or should be proved' as was held by this Court in
Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the
following observations were made:
"Certainly, it is a primary principle
that the accused must be and not merely may be guilty before a court can
convict and the mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions." (2) 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, (3) the circumstances should be of a
conclusive nature and tendency.
(4) they should exclude every possible
hypothesis except the one to be proved, and 164 (5) there must be a chain of
evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in all human probability
the act must have been done by the accused.
These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case based on circumstantial
evidence.
It may be interesting to note that as regards
the mode of proof in a criminal case depending on circumstantial evidence, in
the absence of a corpus deliciti, the statement of law as to proof of the same
was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v.
Horry,(l) thus:
"Before he can be convicted, the fact of
death should be proved by such circumstances as render the commission of the
crime morally certain and leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and compelling as to convince a
jury that up on no rational hypothesis other than murder can the facts be
accounted for." Lord Goddard slightly modified the expression, morally
certain by 'such circumstances as render the commission of the crime certain'.
This indicates the cardinal principle' of
criminal jurisprudence that a case can be said to be proved only when there is
certain and explicit evidence and no person can be convicted on pure moral
conviction. Horry's case (supra) was approved by this Court in Anant Chintaman
Lagu v. The State of Bombay(2) Lagu's case as also the principles enunciated by
this Court in Hanumant's case (supra) have been uniformly and consistently
followed in all later decisions of this Court without any single exception. To
quote a few cases Tufail's case (supra), Ramgopals case (supra), Chandrakant
Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of 1957 decided
on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of
1958 decided on 4.11.1958). There are a number of other cases where although
Hanumant's case has not 165 been expressly noticed but the same principles have
been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration(l).
Mohan Lal Pangasa v. State of U.P.,(2) Shankarlal Gyarasilal Dixit v. State of
Maharashtra(3) and M.C. Agarwal v. State of Maharashtra(4)-a five-Judge Bench
decision.
It may be necessary here to notice a very
forceful argument submitted by the Additional Solicitor-General relying on a
decision of this Court in Deonandan Mishra v. The State of Bihar(5), to
supplement this argument that if the defence case is false it would constitute
an additional link so as to fortify the prosecution case. With due respect to
the learned Additional Solicitor General we are unable to agree with the
interpretation given by him of the aforesaid case, the relevant portion of
which may be extracted thus:
"But in a case like this where the
various links as started above have been satisfactorily made out and the
circumstances point to the appellant as the probable assailant, with reasonable
definiteness and in proximity to the deceased as regards time and
situation-such absence of explanation of false explanation would itself be an
additional link which completes the chain." It will be seen that this
Court while taking into account the absence of explanation or a false
explanation did hold that it will amount to be an additional link to complete
the chain but these observations must be read in the light of what this Court
said earlier, viz., before a false explanation can be used as additional link,
the following essential conditions must be satisfied:
(1) various links in the chain of evidence
led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt
of the accused with reasonable definiteness, and (3) the circumstance is in
proximity to the time and situation.
166 If these conditions are fulfilled only
then a court can use a false explanation or a false defence as an additional
link to lend an assurance to the court and not otherwise. On the facts and
circumstances of the present case, this does not appear to be such a case. This
aspect of the matter was examined in Shankarlal's case (supra) where this Court
observed thus:
"Besides, falsity of defence cannot take
the place of proof of facts which the prosecution has to establish in order to
succeed. A false plea can at best be considered as an additional circumstance,
if other circumstances point unfailingly to the guilt of the accused."
This Court, therefore, has in no way departed from the five conditions laid
down in Hanumant's case (supra).
Unfortunately, however, the High Court also
seems to have misconstrued this decision and used the so-called false defence
put up by the appellant as one of the additional circumstances connected with
the chain. There is a vital difference between an incomplete chain of
circumstances and a circumstance which, after the chain is complete, is added
to it merely to reinforce the conclusion of the court. Where the prosecution is
unable to prove any of the essential principles laid down in Hanumant's case,
the High Court cannot supply the weakness or the lacuna by taking aid of or
recourse to a false defence or a false plea. We are, therefore, unable to
accept the argument of the Additional Solicitor-General Moreover, in M.G.
Agarwal's case (supra) this Court while reiterating the principles enunciated
in Hanumant's case observed thus:
"If the circumstances proved in the case
are consistent either with the innocence of the accused or with his guilt, then
the accused is entitled to the benefit of doubt." In Shankarlal's (supra)
this Court reiterated the same view thus:
"Legal principles are not magic
incantations and their importance lies more in their application to a given set
of facts than in their recital in the judgment".
We then pass on to another important point
which seems to have been completely missed by the High Court. It is well
settled that where on the evidence two possibilities are available or open, 167
one which goes in favour of the prosecution and the other which benefits an
accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali
Ram v. State of Himachal Pradesh,(l) this Court made the following
observations:
"Another golden thread which runs
through the web of the administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the case one pointing to the
guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted This principle has a special
relevance in cases where in the guilt of the accused is sought to be
established by circumstantial evidence." We now come to the mode and
manner of proof of cases of murder by administration of poison. In Ramgopal's
case (supra) this Court held thus:
"Three questions arise in such cases,
namely (firstly), did the deceased die of the poison in question ? (secondly),
had the accused the poison in his possession ? and (thirdly), had the accused
an opportunity to administer the poison in question to the deceased ? It is
only when the motive is there and these facts are all proved that the court may
be able to draw the inference, that the poison was administered by the accused
to the deceased resulting in his death." So far as this matter is
concerned, in such cases the court must carefully scan the evidence and
determine the four important circumstances which alone can justify a
conviction:
(1) there is a clear motive for an accused to
administer poison to the deceased, (2) that the deceased died of poison said to
have been administered, (3) that the accused had the poison in his possession,
(4) that he had an opportunity to administer the poison to the deceased.
168 In the instant case, while two
ingredients have been proved but two have not. In the first place, it has no
doubt been proved that Manju died of potassium cyanide and secondly, it has
also been proved that there was an opportunity to administer the poison. It
has, however, not been proved by any evidence that the appellant had the poison
in his possession. On the other hand, as indicated above, there is clear
evidence of PW 2 that potassium cyanide could have been available to Manju from
the plastic factory of her mother, but there is no evidence to show that the
accused could have procured potassium cyanide from any available source. We
might here extract a most unintelligible and extra-ordinary finding of the High
Court- "It is true that there is no direct evidence on these two points,
because the prosecution is not able to lead evidence that the accused had
secured potassium cyanide poison from a particular source. Similarly there is
no direct evidence to prove that he had administered poison to Manju. However,
it is not necessary to prove each and every fact by direct evidence.
Circumstantial evidence can be a basis for proving this fact." (P.160) The
comment by the High Court appears to be frightfully vague and absolutely
unintelligible. While holding in the clearest possible terms that there is no
evidence in this case to show that the appellant was in possession or poison,
the High Court observes that this fact may be proved either by direct or
indirect (circumstantial) evidence. But it fails to indicate the nature of the
circumstantial or indirect evidence to show that the appellant was in
possession of poison. If the court seems to suggest that merely because the
appellant had the opportunity to administer poison and the same was found in
the body of the deceased, it should be presumed that the appellant was in possession
of poison, than it has committed a serious and gross error of law and has
blatantly violated the principles laid down by this Court. The High Court has
not indicated as to what was the basis for coming to a finding that the accused
could have procured the cyanide. On the other hand, in view of the decision in
Ramgopal's case (supra) failure to prove possession of the cyanide poison with
the accused by itself would result in failure of the prosecution to prove its
case. We are constrained to observe that the High Court has completely misread
and misconstrued the decision in Ramgopal's case. Even prior to Ramgopol's case
there are two decisions of this Court which have taken the same view. In
Chandrakant Nyalchand Seth's case (Criminal Appeal No. 120 of 1957 decided on
19.2.58) this Court observed thus:
"Before a person can be convicted of
murder by poisoning, it is necessary to prove that the death of the deceased
was caused by poison, that the poison in question was in possession of the
accused and that poison was administered by the accused to the deceased.
There is no direct evidence in this case that
the accused was in possession of Potassium Cyanide or that he administered the
same to the deceased." The facts of the case cited above were very much
similar to the present appeal. Here also, the Court found that circumstances
afforded a greater motive to the deceased to commit suicide than for the
accused to commit murder.
This view was reiterated in Dharambir Singh's
case (Criminal Appeal No. 98 of 1958 decided on 4.11.1958) where the court
observed as follows:
"Therefore, along with the motive, the
prosecution has also to establish that the deceased died of a particular poison
said to have been administered, that the accused was in possession of that
poison and that he had the opportunity to administer the same to the deceased:
(see Mt. Gujrani and another v. Emperor(').
It is only when the motive is there and these
facts are all proved that the court may be able to draw the inference, in a case
of circumstantial evidence, that the poison was administered by the accused to
the deceased resulting in his death.
We feel that it was not right for the High
Court to say, when this link in the chain had failed, that it could not be very
difficult for anybody to procure potassium cyanide and therefore the absence of
proof of possession of potassium cyanide by the accused was practically of no
effect. On the facts as found by the High Court it must be held that the second
of the three facts which have to be proved, in case of poisoning based on
circumstantial evidence has not been proved, namely that the accused was in
possession of the poison that had been found in the body-Can it 170 be said in
these circumstances when the proof of a very vital fact namely, that the
accused was in possession of potassium cyanide, has failed that the chain of
circumstantial evidence, is so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and that
the evidence which remains after the rejection of this fact is such as to show
that within all human probability the act must have been done by the
accused." We are, therefore, clearly of the opinion that the facts of the
present appeal are covered by the ratio of the aforesaid decisions. At any
rate, taking the worst view of the matter on the evidence in this case two
possibilities are clearly open- (1) that it may be a case of suicide, or (2)
that it may be a case of murder and both are equally probable, hence the prosecution
case stands disproved.
We now proceed to deal with some of the
judgments of this Court on which great reliance has been placed by the High
Court. In the first place, the High Court relied on the case of Pershadi v.
State of Uttar Pradesh('). This case appears to be clearly distinguishable
because no point of law was involved therein and on the facts proved and the
very extraordinary conduct of the accused, the court held that the
circumstantial evidence was consistent only with the guilt of the accused and
inconsistent with any other rational explanation. Indeed, if this would have
been our finding in this particular case, there could be no question that the
conviction of the accused would have been upheld.
The next on which the High Court placed great
reliance is case Lagu's case (supra). This case also does not appear to be of
any assistance to the prosecution. In the first place, the case was decided on
the peculiar facts of that case. Secondly, even though the corpus deliciti was
not held to be proved yet the medical evidence and the conduct of the accused
unerringly pointed to the inescapable conclusion that the death of the deceased
was as a result of administration of poison and that the accused was the person
who administered the same. This. however, is not the case here. On the other
hand, we have held that the conduct of the appellant has not been proved to be
inconsistent with his guilt and on this ground alone the present case can be
easily distinguished. If at all it is an authority it is on the point that this
Court is not required to enter into an elaborate examination of the evidence
unless there are very special circumstances to justify the same. At this Court
in that case was clearly of the view that the High Court had fully considered
the facts and a multitude of circumstances against the accused remained
unexplained, the presumption of innocence was destroyed and the High Court was
therefore right in affirming the conviction. Of course, Sarkar, J.
gave a dissenting judgment. From a detailed
scrutiny of the decision cited above (Lagu's Case) we find that there is
nothing in common between the peculiar facts of that case and the present one.
Hence, this authority is also of no assistance to the prosecution.
Reliance was then placed on the case of Ram
Dass v. State of Maharashtra(l) but we are unable to see how this decision
helps the prosecution. The High Court relied on the fact that as the accused
had taken the deceased immediately to the Civil Hospital in order to stop the
poison from spreading, this particular fact was eloquent enough to speak for
the innocence of the accused. A careful perusal of that decision shows that
this Court did not accept the prosecution case despite circumstances appearing
in that case which are almost similar to those found in the present one.
Moreover, here also the accused had immediately sent for their family Doctor
after they had detected that Manju was dead. The reason for a little delay in
lodging the FIR has already been explained by us while dealing with the facts.
In the decision cited above, it was clearly held that the case against the
accused was not proved conclusively and unerringly and that two reasonable
views were possible, the relevant portion of which may be extracted thus:
"On a consideration of the evidence and
the circumstances referred to above, we are satisfied that this is a case in
which the circumstantial evidence did not prove the case against the accused
conclusively and unerringly, and at any rate two reasonable views were
possible." 172 We have already found in the instant case that taking the
prosecution at the highest the utmost that can be said is that two views-one in
favour of the accused and the other against him-were possible. Ram Dass's case
also therefore supports the appellant rather than the prosecution.
The last case relied upon by the High Court
is Shankarlal's case (supra) but we are unable to see how this case helps the
prosecution. The observations on which the High Court has relied upon appears
to have been torn from the context. On the other hand, this decision fully
supports the case of the appellant that falsity of defence cannot take the
place of proof of facts which the prosecution has to establish in order to
succeed. This decision has already been dealt with by us while considering the
merits of the present case and it is not necessary to repeat the same.
These are the only important cases of this
Court on which the High Court seeks to rely and which, on a close examination,
do not appear to be either relevant or helpful to the prosecution case in any
way. On the other hand, some of the observations made in these cases support
the accused rather than the prosecution.
This now brings us to the fag end of our
judgment.
After a detailed discussion of the evidence,
the circumstances of the case and interpretation of the decisions of this Court
the legal and factual position may be summarised thus:
(1) That the five golden principles
enunciated by this Court in Hanumant's decision (supra) have not been satisfied
in the instant case. As a logical corollary, it follows that it cannot be held
that the act of the accused cannot be explained on any other hypothesis except
the guilt of the appellant nor can it be said that in all human probability,
the accused had committed the murder of Manju. In other words, the prosecution
has not fulfilled the essential requirements of a criminal case which rests
purely on circumstantial evidence.
(2) That, at any rate, the evidence clearly
shows that two views are possible-one pointing to the guilt of the accused and
the other leading to his innocence. It 173 may be very likely that the
appellant may have administered the poison (potassium cyanide) to Manju but at
the same time a fair possibility that she herself committed suicide cannot be
safely excluded or eliminated. Hence, on this ground alone the appellant is
entitled to the benefit of doubt resulting in his acquittal.
(3) The prosecution has miserably failed to
prove one of the most essential ingredients of a case of death caused by
administration of poison, i.e., possession of poison with the accused (either
by direct of circumstantial evidence) and on this ground alone the prosecution
must fail.
(4) That in appreciating the evidence, the
High Court has clearly misdirected itself on many points, as pointed out by us,
and has thus committed a gross error of law:
(5) That the High Court has relied upon
decisions of this Court which are either inapplicable or which, on closer
examination, do not support the view of the High Court being clearly
distinguishable.
(6) That the High Court has taken a
completely wrong view of law in holding that even though the prosecution may
suffer from serious infirmities it could be reinforced by additional link in
the nature of false defence in order to supply the lacuna and has thus
committed a fundamental error of law.
(7) That the High Court has not only mis-appreciated
the evidence but has completely overlooked the well established principles of
law and in view of our finding it is absolutely clear that the High Court has
merely tried to accept the prosecution case based on tenterhooks and slender
tits and bits.
(8) We entirely agree with the High Court
that it is wholly unsafe to rely on that part of the evidence of Dr. Banerjee
(PW 33) which shows that poison was 174 forcibly administered by the process of
mechanical suffocation.
(9) We also agree with the High Court that
there is no manifest defect in the investigation made by the police which
appears to be honest and careful. A proof positive of this fact is that even
though Rameshwar Birdichand and other members of his family who had practically
no role to play had been arrayed as accused but they had to be acquitted by the
High Court for lack of legal evidence.
(10) That in view of our finding that two
views are clearly possible in the present case, the question of defence being
false dose not arise and the argument of the High Court that the defence is
false does not survive.
This was a fit case in which the High Court should
have given at least the benefit of doubt to the appellant.
Normally, this Court does not interfere with
the concurrent findings of fact of the courts below, in the absence of very
special circumstances or gross errors of law committed by the High Court. But
where the High Court ignores or over locks the crying circumstances and proved
facts, violates and misapplies the well established principles of criminal
jurisprudence or decisions rendered by this Court on appreciation of
circumstantial evidence and refuses to give benefit of doubt to the accused
despite facts apparent on the face of the record or on its own findings or
tries to gloss over them without giving any reasonable explanation or commits
errors of law apparent on the face of the record which results in serious and
substantial miscarriage of justice to the accused, it is the duty of this Court
to step in and correct the legally erroneous decision of the High Court.
We can fully understand that though the case
superficially viewed bears an ugly look so as to prima facie shock the
conscience of any Court yet suspicion, however great it may be, cannot take the
place of legal proof. A moral conviction however strong or genuine cannot
amount to a legal conviction supportable in law.
175 It must be recalled that the well
established rule of criminal justice is that 'fouler the crime higher the
proof'. In the instant case, the life and liberty of a subject was at stake. As
the accused was given a capital sentence, a very careful, cautious and meticulous
approach was necessary to be made.
Manju (from the evidence on the record)
appears to be not only a highly sensitive woman who expected whole-hearted love
and affection from her husband but having been thoroughly disappointed out of
sheer disgust, frustration and depression she may have chosen to end her
life-at least this possibility is clearly gleaned from her letters and mental
attitude. She may have been fully justified in entertaining an expectation that
after marriage her husband would look after her with affection and regard. This
is clearly spelt out in the letters where she hinted that her husband a was so
busy that he found no time for her. A hard fact of life, which cannot be
denied, is that some people in view of their occupation or profession fined
very little time to devote to their family. Speaking in a light vein, lawyers,
professors, Doctors and perhaps Judges fall within this category and to them
Manju's case should be an eye- opener.
For the reasons given above we hold that the
prosecution has failed to prove its case against appellant beyond reasonable
doubt. We, therefore, allow the appeal, set aside the judgments of the courts
below and acquit the appellant, Sharad Bridichand Sarda, of the charges framed
against him and direct him to be released and set at liberty forthwith.
VARADARAJAN, J. This appeal by special leave
is directed against the judgment of a Division Bench of the Bombay High Court
in Criminal Appeal No. 265 of 1983 and Confirmation Case No. 3 of 1983,
dismissing the appeal and confirming the sentence of death awarded to the first
accused Sharad Birdhichand Sarda (hereinafter referred to as the 'appellant')
by the Additional Sessions Judge, Pune in Sessions Case No. 203 of 1982. The
appellant, Rameshwar Birdhichand Sarda and Ramvilas Rambagas Sarda were accused
1, 2 and 3 respectively in the Sessions Case.
The appellant and the second accused are the
sons of one Birdhichand of Pune whose family has a cloth business.
In addition 176 the appellant who is said to
be a graduate in Chemical Engineering had started a chemical factory at
Bhosari, a suburb of Pune. The third accused is uncle of the appellant and the
second accused. The appellant is the husband of Manjushree alias Manju while
the second accused is the husband of Anuradha (P.W.35). Birdhichand's family
has its residential house at Ravivar Peth in Pune and owns a flat in a building
known as Takshasheela Apartments in Mukund Nagar area of Pune.
Manju, the alleged victim in this case, was
the eldest amongst the five children of Rameshwar (P.W 2) and Parwati (P.W.20).
Anju (P.W.6) is the second daughter of P.W.2 who is a Commercial Tax and Income
Tax Consultant since 1960.
P.W.2 is living in his own house situate in
Subash Road in Beed city since 1973, prior to which he was living in a rented
house in Karimpura Peth in that city. Meena (P.W.5) is a school and college
mate and friend of Manju who passed the B.Sc. examination in Chemistry in the
First Class in 1980 while P.W.5 who had passed the 10th standard examination
together with Manju was still studying in college. Rekha (P.W.3) whom Manju
used to call as Vahini is another friend of Manju. She is living with her
husband Dr. Dilip Dalvi in a portion of P.W.2's house in Subash Road, Pune as
his tenant. P.W.20's elder brother Dhanraj Rathi (P.W.22) is a resident of Pune
where he is doing business in the sale of plastic bags for the manufacture of
which he has a plastic factory called Deepak Plastics at Beed. It is a
partnership concern of P.W.20 and some others including P.W.22's third son
Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20.
After Manju passed her B.Sc. degree
examination in 1980 her marriage with the appellant was settled by a formal
betrothal ceremony which took place in June 1981. The marriage of the appellant
and Manju was performed at the expense of P.W.2 at Beed on 11.2.1982. The
appellant and Manju left for Pune on 12.2.1982 after the marriage.
Subsequently, P.W.2 sent his elder son Deepak
for fetching Manju from the appellant's house at Pune and they accordingly came
back to Beed on 22.2.1982. The appellant went to Beed four or five days later
and took Manju back to Pune on the next day after pleading his inability to
stay in P.W.2's house for some more days. This was Manju's first visit to her
parents' house after her marriage with the appellant. She is said to have been
very happy during that visit. Thereafter Manju came to her parents' house
alongwith her maternal uncle Dhanraj Rathi (P.W.22) on or about 177 2.4.1982.
It is the case of the prosecution that during that visit Manju was uneasy and
had generally complained against the appellant to P.Ws.3 and 6. P.W.2 planned
to keep Manju in his house for about three weeks on that occasion. But news of
the death of the appellant's grand father was received in P.W.2's house in Beed
and, therefore, P.Ws. 2 and 20 and Manju went to Pune for condolences on
11.4.1982.
After meeting the appellant's father and
others at Pune, P.Ws. 2 and 20 returned to Beed leaving Manju in the
appellant's house in Pune. That was the second visit of Manju to her parents'
house after marriage with the appellant. P.Ws.2 and 20 came to Pune again on or
about 13.5.1982. After staying for some time as usual in the house of P.W. 22,
P.Ws. 2 and 20 visited the house of Birdhichand on that occasion. It is the
case of the prosecution that P.Ws. 2 and 20 found Manju disturbed and uneasy
and that they, therefore, took her to the house of P.W. 22 with the permission
of Birdhichand. It is also the case of the prosecution that on reaching P.W.
22's house Manju completely broke down and started weeping in the arms of
P.W.20. P.Ws. 2 and 20 returned to Beed from Pune and sent their second son
Pardeep four or five days later to fetch Manju, who had, however, by then gone
with the appellant to Tirupati in Andhra Pradesh. After learning that the
appellant and Manju had returned to Pune, P.W.2 sent his son Deepak to fetch
Manju to Beed. Accordingly Deepak brought Manju to Beed accompanied by the
third accused daughter Kavita on 25.5.1982. This was Manju's third and last
visit to her parents' house after her marriage with the appellant.
It is the case of the prosecution that Manju
was totally disturbed and frightened during that visit and that she complained
to her mother P.W.20 against the appellant and she in turn conveyed to P.W.20
what she heard from Manju.
Birdhichand went to Beed on 2.6.1982 without
any prior intimation for taking Manju to Pune on the ground that Manju's
presence in his family house at pune was necessary for the betrothal ceremony
of his daughter Shobha fixed for 13.6.1982 as well as for her marriage fixed
for 30.6.1982.
It is the case of the prosecution that when
Manju came to know that her father in-law Birdhichand had come for taking her
to Pune she was wept and expressed her unwillingness to go to Pune and that,
however, on the assurance of Birdhichand that he would see to it that nothing
happened to the life of Manju, P.W.2 permitted Manju to go to Pune alongwith
Birdhichand and she accordingly went to Pune on 3.6.1982 alongwith Kavita and
Birdhichand.
178 The family of Birdhichand and his sons
including the appellant is joint. As stated earlier they have their family's
residential house at Ravivar Peth, Pune besides the flat which they owned in
the Takshasheela Apartments situate at some distance from their family house.
Their flat has two bed-rooms besides a hall and other portions. Birdhichand's
two married sons, the appellant and the second accused used to go to the
family's flat in the Takshasheela Apartments for sleeping during the nights.
The appellant and Manju used to sleep in one of the two bed-rooms while the
second accused and his wife Anuradha (P.W.35) and their children used to sleep
in the other bed-room.
Manju had written amongst others, three letters,
Ex.33 dated 25.4.1982 to her friend vahini (P.W.3) and Ex. p. 30 dated 8.2.1982
and p. 32 dated 8.6.1982 to her younger sister Anju (P.W.6). In Ex. 33 Manju
has stated inter alia that she was feeling lonely though all persons in pune
were very good and everybody was loving and that one reason is that there are
many elderly persons in the house and, therefore, she does not dare to do any
work independently and the fear which is in her mind every time leads to
confusion. She has also stated in that letter though all person in Pune were
very good that she becomes angry if he (appellant) does not speak to her when
she goes and talks to him even ten times and that till now this man (appellant)
had no time to mind his wife. She has stated in that letter that she dare not
ask him (appellant) whether his clothes be taken for washing and that at
present her status is only that of an unpaid maid-servant. She has finally
stated in that letter that on the day on which self-pride in the appellant is
reduced no other person will be more fortunate than her but it is not certain
whether she will be alive until that date. In Ex. 30 she has stated inter alia
that she was undergoing a very difficult test and was unable to achieve her
object, that it would be well and good only if she controls herself and that
some other way will have to be evolved when' that becomes impossible. In Ex. 32
she has stated that though she was happy at Pune she does not know why there is
such a dirty atmosphere in the house and it is felt every moment that something
will happen. She has also stated in that letter that no work had been started
in the house though Shobha's 'sari' function is fixed for 13.6.1982 and,
therefore, she is out of her mind.
The case of the prosecution as regards the alleged
occurrence during the night of 11/12.6.1982 is thus: on 11- 6-1982 at about
10.30 p.m. Manju accompanied by Anuradha, (P.W. 35) and 179 three children of
the latter came to the Taksheela Apartments by an auto-rickshaw. The
night-watchman of the Takshasheela Apartments, kerba (P.W. 28) has deposed
about this fact. Syed Mohideen, (P.W. 7) an auto-rickshaw driver residing in
the border of Ganesh Peth and Ravivar Peth in Pune claims to have taken two
ladies, three children and a baby by his auto-rickshaw at about 11 p.m. on that
day to Mukund Nagar. He has identified the photo of Manju published in a
newspaper two or three days later as that of one of the two ladies who
travelled by his auto-rickshaw as aforesaid.
The second accused had already gone to the
flat in the Takshasheela Apartments. The appellant reached the flat about 15
minutes later by a scooter, whom the night watchman (P.W. 28) remarked that he
was coming rather late he told P.W. 28 that it was because he had a meeting.
After the appellant reached the flat he and Manju retired to their bed-room
while the second accused and P.W. 35 retired to their's. Thereafter the
appellant came out of his bed-room at about 2 a.m. on 12.6.1982 and went to the
second accused and both of them went out of that flat by scooters soon
afterwards. The appellant proceeded to Ravivar Peth and called his father while
the second accused went to call Dr. Uttam chand Lodha. (P.W. 24) who lives
about one and a half kilo metres away from the Takshasheela Apartments without
seeking the help of Dr. Anjali Kelkar,(P.W. 26) and her husband Dr. Shrikant
Kelkar (P.W. 27) who lived close by in the same Takshasheela Apartments. P.W.
24 reached the appellant's flat at about 2.30 a.m. and found Manju dead, with
rigor motis having already set in and no external mark showing the cause of
death. He, however, opined that it may be a case of unnatural death and
suggested that the police may be informed. When Birdhichand who had arrived at
the flat by then advised that some other doctor may be called as he was not
satisfied with the opinion of P.W- 24 suggested that Dr. Anil Gandhi, P.W 25
may be called if so desired.
Thereafter, P.W. 24 and the third concerned
who had come with Birdhichand went to call P.W. 25 who lives about 7 kilo
metres away from the Takshasheela Apartments. On their way they contacted P.W.
25 over the phone and took him to the appellant's flat where he examined Manju
at about 4 a.m. and pronounced that she was dead. He opined that she might have
died three or four hours earlier and stated that there was no external evidence
showing the cause of death. He too suggested that the police should be informed
to avoid any trouble.
180 The third accused went to Mohan Asava,
(P.W. 30) at about 4.30 a.m. on 12.6.1982 and called him to the appellant's
flat after informing him that Manju was dead.
P.W. 30, who accompanied the third accused,
saw the body of Manju in the flat and left the place after suggesting that the
police should be informed. The third accused contacted P.W. 30 over the phone
at about 6.30 a.m. and asked him to go and inform the police that Manju had
died at 5.30 a.m.
P.W. 30 accordingly went to Maharishi Nagar
Police Station at about 7 or 7.15 a.m. and informed the Head Constable, (P.W.
31) who thereupon made the entry Ex. 120 to the effect that Manju was found to
be dead when the appellant tried to wake her a up at 5.30 a.m- on 12.6.1982.
P.W. 31 proceeded to the appellant's flat at about 8 a.m. after informing the
Inspector of Police, P.W. 40 telephonically about the suspicious death of
Manju.
On receipt of information from P.W. 22 by a
lightning telephone call at about 6 a.m. on 12.6.1982 that Manju was extremely
serious P.W. 2 went from Beed to Pune alongwith his wife P.W. 20 and his son
Pradeep and Hiralal Sarda (P.W. 4) by jeep at about 1 P.m. on 12.6.1982. and
learnt that Manju was dead. Thereafter P.W.2 went alongwith Hiralal Sarda to
the Sasson Hospital where Manju's body had been sent by the police for autopsy.
Dr. Kalikrishnan Banerji, P.W. 33 who conducted
autopsy on the body of Manju did not find any external or internal injury. He
preserved the viscera, small intestines etc. of Manju and reserved his opinion
about the cause of her death.
On receipt of the Chemical Examiner's report
Ex. 130 to the effect that Manju's viscera contained potassium cyanide poison
P.W. 33 finally opined that Manju had died due to potassium cyanide poisoning
and simultaneous mechanical suffocation. After completing the investigation P.
W.40 filed the charge-sheet against the appellant and the other two accused on
13.9.1982.
The Additional Sessions Judge, Pune tried the
appellant for offence under Sec. 302 IPC of murder of Manju by administering
potassium cyanide poison or by suffocating her or by both, all the three accused
for the offence under Sec. 120 B IPC of conspiring to destroy the evidence of
the murder of Manju by giving a false report to the police about the time of
her death and the third accused for the offence under Sec. 109 read with Sec.
201 IPC and Sec. 201 IPC for intsigating P.W.30 to give false information to
the police and giving false information to P.W. 22 regarding the murder of
Manju.
181 The appellant and the other two accused
denied the charges framed against them. The appellant denied that he had
anything to do with Ujvala (P.W. 37) with whom is alleged to have been in love
at the relevant time. He admitted that Manju and P.W. 35 accompanied by some
children went to their flat in the Takshasheela Apartments at about 10.30 p.m.
on 11.6.1982 but denied that they travelled by any auto-rickshaw and stated
that they went there by their family's car driven by the second accused. He
denied that he went to the flat about 15 minutes later and stated that he
returned to the fiat only at 1.30 or 1.45 a.m. on 12.6 1982 after attending a
meeting in the Rajasthan Youth Club. He stated that after changing his clothes
he looked at Manju and found something abnormal and became suspicious and then
went to the second accused and that there after he went to call his father and
uncle while the second accused went to call Dr. Lodha, P.W. 24.
The Trial Court found all the three accused
guilty as charged and convicted them accordingly and sentenced the appellant to
death under s.302 IPC and all the three accused to rigorous imprisonment for
two years and a fine of Rs. 2,000 each under s.120 B IPC but did not award any
sentence under s.201 read with s.120B The appellant and the other two accused
filed appeals against their conviction and the sentences awarded to them.
The State filed a criminal revision
application for enhancement of the sentence awarded to accused 2 and 3.
These appeals, confirmation case and criminal
revision application were heard together by the Division Bench of the Bombay
High Court, which in a lengthy judgment. (195 pages of our paper book) allowed
the appellant's appeal in part regarding his conviction and sentence under
s.120 B IPC but confirmed his conviction and sentence of death awarded under s
302 IPC and allowed the appeal of accused 2 and 3 in full and acquitted them
and dismissed the criminal revision application. Hence, the appellant alone has
come up before this Court on special leave against his conviction and the
sentence of death.
I had the benefit of reading the judgment of
my learned brother Fazal Ali, J. I agree with his final conclusion that the
appeal should succeed. The learned Judges of the High Court have relied upon 17
circumstances for confirming the conviction and sentence of death awarded to
the appellant.
My learned brother Fazal Ali, J. has rightly
rejected every one of those circumstances as not conclusively pointing to the
guilt of the appellant, including the 182 circumstance that the appellant was
last seen with Manju before her death on the ground that the case of the prosecution
based on evidence of Dr. Banerji (P.W. 33) that there was any mechanical
suffocation of Manju has been disbelieved by the High Court itself and that
some entries in the carbon copy Ex. 134 of P.W. 33's report sent to the
Chemical Examiner had been scored and interpolated after his report Ex. 132 to
the Chemical Examiner had left his hands, that the original entry in the
postmortem certificate Ex.
134 contained the words 'can be a case of
suicidal death' and, that the explanation of P.W.33. that he wrote the words
'time of death' twice and not the words 'can be a case of suicidal death' and,
therefore, he scored off one of them is not acceptable at all. Doctors P.W.24
and 25 did not find any external injury on the body of Manju which they saw at about
2.30 and 4.30 a.m. on 12.6.1982. Even P.W.33. did not find any external or
internal injury on the body of Manju.
In these circumstances, unless the
prosecution excludes the possibility of Manju having committed suicide by
consuming potassium cyanide poison, as rightly pointed out by my learned
brother Fazal Ali, J., (no adverse inference of guilt can be drawn against the
appellant from the fact that he was last seen with Manju, he being no other
than her own husband who is naturally expected to be with her during nights.)
Some of these 17 circumstances cannot, by any stretch of imagination, be held
to point to the quilt of the appellant. Circumstance No. 6 is an attempt of the
appellant's father Birdhichand to get the body of Manju cremated before 7 a.m.
On 12.6.1982 by expressing such a desire to P.W.30. Circumstance No.9 is
arrangement of the dead body of Manju to make it appear that she died a
peaceful and natural death. Circumstance No. 11 is absence of an ankle of Manju
from her leg. Circumstance No. 12 is the conduct of the appellant in allegedly
concealing the anklet in the fold of the chaddar. Circumstance No. 15 is the
fact that according to the medical evidence Manju was pregnant by four to six
weeks and it would normally dissuade her from committing suicide. With respect
to the learned judges of the High Court, in my view, by no stretch of
imagination, can any of these circumstances be considered to point to nothing
but the guilt of the appellant in a case resting purely on circumstantial evidence.
However, since I am unable to persuade myself
to agree with my learned brother Fazal Ali, J. on four points, I am writing
this separate but concurring judgment, giving my view on those points, namely,
(1) ill-treatment of Manju by the appellant, (2) intimacy of 183 the appellant
with Ujvala (P.W.37), (3) admissibility of Manju's letters Exs. 30,32 and 33
and the oral evidence of P.Ws. 2,3,5,6 and 20 about the alleged complaints made
by Manju against the appellant under s. 32 (1) of the Evidence Act and (4)
conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju.
My learned brother Fazal Ali, J. has observed
as follows at pages 3 and 96 of his judgment:
"On the other hand the plea of the
defence was that while there was a strong possibility of Manju having been
ill-treated and uncared for by her husband and her in-laws, being a highly
sensitive and impressionate woman, she committed suicide out of sheer
depression and frustration arising from an emotional upsurge." (P-3)
"On the other hand this circumstance may have prompted her to commit
suicide, for if a child was born to her, in view of her ill-treatment by her
husband and her in laws the child may not get proper upbringing".
(P.96) I do not recollect any admission by
Mr. Ram Jethmalani, learned counsel for the appellant in the course of his
arguments about any cruelty or ill-treatment to Manju the part of the appellant
or his parents. The evidence of P.W.3 is that during Manju's second visit to
Beed after her marriage with the appellant she found Manju not quite happy and
very much afraid of the appellant. The evidence of P.W.5 is that during Manju's
second visit to Beed, Manju complained to her about the appellant returning
home late in the night and avoiding to have a talk with her and that Manju told
her that she was afraid of the appellant and apprehended danger to her life at
his hands. The further evidence of the P.W.5 is that during her third visit to
Beed she inferred from Manju's face a spell of fear. The evidence of P.W.6 is
that during Manju's second visit to Beed, Manju told her that the appellant
used to leave the house early in the morning and return late at night under the
pretext of work in his factory and that he was even reluctant to talk with her.
P.W.6 has stated that during Manju's third visit to Beed she was extremely
uneasy. disturbed and under a spell of fear, that Manju told her the appellant
did not relish even her question as to why he was not prepared to have a simple
talk with her, and that 184 during her third visit to Beed, Manju expressed her
unwillingness to go to Pune when Birdhichand went to Beed on 2.6.1982 for
taking her to Pune. To the same effect is the evidence of P.W s. 2 and 20 about
how Manju looked in spirit and what she stated during her last two visits. My
learned brother Fazal Ali, J. has rightly rejected the oral evidence of P.Ws.
2, 3, 5, 6 and 20. He has extracted the relevant portions of the letters Exs.
30, 32 and 33 in his judgment and has observed at page 23 that one thing which
may be conspicuously noticed in Ex. 30 is that Manju was prepared to take all
the blame on herself rather than incriminating her husband or his rents at page
24 that it was conceded by the learned Additional Solicitor General that the
relevant portion of Ex.32 does not refer to any ill treatment of Manju by the
appellant or his parents; and at page 30 that it can be easily inferred from
Ex. 33 that Manju did not have any serious complaint against the appellant
except that she was not getting proper attention which she deserved from him.
These three letters do not establish that Manju made any complaint of any
ill-treatment by the appellant or his parents. In my view, these three letters
and the aforesaid oral evidence of P.Ws. 2, 3 5 6 and 20 are inadmissible in
evidence under s. 32(1) of the Evidence Act for reasons to be given elsewhere
in my judgment. Thus there is no acceptable evidence on record to show that
either the appellant or his parents ill-treat Manju. The High Court also has
not found any such ill treatment in its judgment. On the other hand, what has
been found by the High Court in para 104 of its judgment is that the appellant
treated Manju contemptuously. Even while setting out the case of the
prosecution the High Court has stated in para 7 of its judgment that it is
alleged that the appellant started giving contemptuous treatment to Manju and
in para 20 that the appellant has denied in his statement recorded under s.313
Cr.P.C. that Manju was being treated contemptuously. No question has been put
to the appellant in the course of his examination under s.313 Cr.P.C. about any
ill treatment of Manju by the appellant or his parents. My learned brother
Fazal Ali, J. has referred in pages 97 and 98 of his judgment to this Court's
decisions in Fateh Singh Bhagat Singh v. State of Madhya Pradesh, Shamu Babu
Chaugale v. State of Mahararstra and Harijan Megha Jesha v. State of Gujarat(3)
and has observed at page 98 of his judgment that circumstance not put to the
appellant in his examination under s. 313 Cr.PC. have to be completely excluded
from consideration in view of those decisions. Therefore, since 185 no question
has been put to the appellant in this regard in the course of his examination
under s 313 Cr.P.C.. even if there is any evidence about any ill-treatment of
Manju by the appellant or his parents it has to be completely excluded from
consideration. I felt it necessary to say this in my judgment since I think
that in fairness to the appellant it has to be done.
My learned brother Fazal Ali, J. has set out
the case of the prosecution in so far as it connects P,W. 37 with the appellant
at page 3 of his judgment where he has stated that the positive case of the
prosecution is that the appellant was not at all interested in Manju and had
illicit intimacy with P.W.37. On this point there is the evidence of P.Ws. 3, 5
and 6. The evidence of P.W.3 is that during her second visit to Beed, Manju
informed her that the appellant had a girl-friend by name Ujwala Kothari and
that he introduced her (Ujvala Kothari) to her and told her that she should
learn from Ujvala Kothari about how she should behave with him. The evidence of
P.W.5. is that during her second visit to Beed, Manju told her that the
appellant had an affair with a girl by name Ujvala Kothari and that she had
seen Ujvala's latter addressed to the appellant and an incomplete letter of the
appellant addressed to that girl. No such letters have been produced in
evidence. The evidence of P.W.6 is that during her second visit to Beed, Manju
told her that the appellant had an affair with a girl by name Ujvala Kothari
and also introduced that girl to her in the Pearl Hotel saying that she has
complete command over him and that she (Manju) should take lessons from her
(Ujvala Kothari) about how she should behave with him. There is no other
evidence regarding this alleged illicit intimacy between the appellant and
P.W.37. This alleged illicit intimacy is totally denied not only by the
appellant but also by P,W.37. The alleged incident in the Pearl Hotel,
according to the case of the prosecution took place on 17.3.1982. But there is
no reference whatever to any such incident in any of the subsequent three
letters of Manju, Exs. 30, 32 and 33, dated 25.4.1982, 8.5.1982 and 8.6.1982
respectively. My learned brother Fazal Ali, J. has rightly rejected the oral
evidence not only of P.Ws. 3, 5 and 6 but also of P.Ws.2 and 20 as
untrustworthy at page 65 of his judgment. However, at page 68 he has stated
that it has been proved to some extent that the appellant had some sort of
intimacy with Ujvala Kothari and it had embittered the relationship between the
appellant and Manju. In my view, as already stated, the oral evidence of P.Ws.
2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the
appellant and or his 186 family, and even her letters Exs. 30, 32 and 33 are
inadmissible in evidence under s.32(1) of the Evidence Act.
Thus, there is absolutely no reliable or
admissible evidence on record to show that the appellant had any intimacy with
Ujwala (P.W.37). I am, therefore, unable to share the view of my learned
brother Fazal Ali, J. that the prosecution has proved to some extent that the
appellant had some sort of intimacy with P.W.37 and it had embittered the
relationship between the appellant and Manju. I think that I am bound to say
this in fairness to not only the appellant but also P.W.37 who, on the date of
her examination in the Court, was a 19 years old student and has stated in her
evidence that she had known the appellant only as the President of the
Rajasthan Youth Club in the year 1979 when she was a member of that Club for
about 5 or 6 months in that year.
My learned brother Fazal Ali, J. has referred
to the oral evidence of P.Ws.2, 3, 5, 6 and 20 about Manju's alleged complaint
against the appellant and or his parents and also to the contents of Manju
letters, Exs. 30, 32 and
33. I have mentioned above the gist of that
oral evidence and those three letters. My learned brother has held the said
oral evidence and those three latters to be. admissible under s.32(1) of the
Evidence Act while rejecting the oral evidence to those five witnesses as
untrustworthy at pages 64 and 65 of his judgment, mainly on the ground that the
oral evidence is quite inconsistent with the spirit and contents of those
letters. He appears of have relied upon those three letters for two purposes,
namely, rejecting the oral evidence of those five witnesses as untrustworthy
and supporting the defence version that it may be a case of suicidal death. In
my opinion the oral evidence of those five witnesses about what Manju is
alleged to have told them against the appellant and or his parents and the
three letters, are inadmissible under s. 32(1) of the Evidence Act, which reads
thus:
"32. Statements, written or verbal, of
relevant facts made by a person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under the circumstances of the
case, appears to the Court unreasonable, are themselves relevant facts in the
following cases:- (1) When the statement is made by a person as to the cause of
his death, or as to any of the circumstances 187 of the transaction which
resulted in his death, in cases in which the cause of that person's death comes
into question".
The alleged oral statements of Manju to P,Ws.
2, 3, 5, 6 and 20 are said to have been made during her second and third visits
to Beed in the end of February 1982 and end of May 1982 respectively before her
death during the night of 11/12.6.1982. She had written the letters, Exs. 33,
30 and 32 on 25.4.1982, 8.5.1982 and 8.6.1982 as stated earlier.
The oral evidence of these witnesses and
these three letters are not as to the cause of Manju's death or as to any of
the circumstances of the transaction which resulted in her death during that
night. The position of law relating to the admissibility of evidence under s.
32(1) is well settled. It is, therefore, not necessary to refer in detail to
the decisions of this Court or of the Privy Council or our High Courts. It
would suffice to extract what the learned authors Woodroffe and Amir Ali have
stated in their Law of Evidence, fourteenth edition and Ratanlal and Dhirajlal
in their Law of Evidence (1982) reprint). Those propositions are based mostly
on decisions of courts for which reference has been given at the end. They are
these:
Woodroffe & Amir Ali's Law of Evidence,
fourteenth edition. Page- 937 'Hearsay is excluded because it is considered not
sufficiently trustworthy. It is rejected because it lacks the sanction of the
test applied to admissible evidence, namely, the oath and cross-examination.
But where there are special circumstances which give a guarantee of
trustworthiness to the testimony, it is admitted even though it comes from a
second-hand source".
Page-941 "What is relevant and
admissible under clause (1) of this section (Section-32) is the statements
actually made by the deceased as to the cause of his death or of the
circumstances of the transaction which resulted in his death".
Page-945-946 "A statement must be as to
the cause of the declarant's death or as to any of the circumstances of the
transaction which resulted in his death i.e. the cause and circumstances of the
death and not previous or subsequent transaction, 188 such independent
transactions being excluded as not falling within the principle of necessary on
which such evidence is received. When a person is not proved to have died as a
result of injuries received in the incident in question, his statement cannot
be said to be a statement as to the cause of his death or as to any of the
circumstances which resulted in his death.
(AIR 1964 SC 900). Where there is nothing to
show that the injury to which a statement in the dying declaration relates was
the cause of the injured person's death or that the circumstances under which
it was received resulted in his death, the statement is not admissible under
this clause". (AIR 25 Bombay 45).
Page-947 "Circumstances of the
transaction resulting in his death; This clause refers to two kinds of
statements:
(i) when the statement is made by a person as
to the cause of his death or (ii) when the statement is made by a person as to
any of the circumstances of the transaction which resulted in his death. The
words 'resulted in his death' do not mean 'caused his death'.
The expression 'any of the circumstances of
the transaction which resulted in his death' is wider in scope than the
expression 'the cause of his death. The declarant need not actually have been
apprehending death." (AIR 1964 M.P. 30).
Page-947 "The expression 'circumstances
of the transaction' . occurring in s.32, clause (1) has been a source of
perplexity to Courts faced with the question as to what matters are admissible
within the meaning of the expression. The decision of their Lordships of the
Privy Council in Pukala Narayanaswanmi v. Emperor (LR 66 IA 66) sets the limits
of the matters that could legitimately be brought within the purview of that
expression. Lord Atkin, who delivered the judgment of the Board, has, however,
made it abundantly clear that, except in special circumstances no circumstance
could be a circumstance of the transaction if it is not confined to either the
time actually occupied by the transaction resulting in death or the sense in
which the actual transaction resulting in death took place.
The special circumstance permitted to
transgress the time factor is, for example, a case of prolonged poisoning,
while the special circumstance 189 permitted to transgress the distance factor
is, for example, a case of decoying with intent to murder. But the
circumstances must be circumstances of the transaction and they must have some
proximate relation to the actual occurrence." Page-948 "Circumstances
of the transaction' is a phrase no doubt that conveys some limitations. It is
not as broad as the analogous use in 'circumstantial evidence' which includes
the evidence of all relevant factors. It is on the other hand narrower than
'res gestae'.
Circumstances must have some proximate
relation to the actual occurrence, though, as for instance, in the case of
prolonged poisoning they may be related to dates at a considerable distance
from the date of actual fatal dose".
Page-948 "The Supreme Court in the case
of Shiv Kumar v. State of U.P. (1966 Criminal Appeal R. (SC) 281) has made
similar observations that the circumstances must have some proximate, relation
to the actual occurrence.
and that general expressions indicating fear
or suspicion, whether of a particular individual or otherwise and not directly
to the occasion of death will not be admissible".
Page -949 "The clause does not permit
the reception in evidence of all such statement of a dead person as may relate
to matters having a bearing howsoever remote on the cause or the circumstances
of his death. It is confined to only such statements as relate to matters so
closely connected with the events which resulted in his death that may be said
to relate to circumstances of the transaction which resulted in his death. (LR
66 IA 66). 'Circumstances of the transaction which resulted in his death' means
only such facts or series or facts which have a direct or organic relation to
death. Hence statement made by the deceased long before the incident of murder
is not admissible". (1974 CLJ (MP) 1200).
Law of Evidence by Ratanlal & Dhirajlal
(1982 Reprint) 190 Page 94 "Circumstances of the transaction; General
expressions indicating fear or suspicion whether of a particular individual or
otherwise and not directly related to the occasion of the death are not
admissible" (LR 66 IA 66)(18 Part 234).
Page 95 "Circumstances must have some
proximate relation to the actual occurrence and must be of the transaction
which resulted in the death of the declarant. The condition of the
admissibility of the evidence is that the cause of the declarant's death comes
into question.
It is not necessary that statement must be
made after the transaction has taken place or that the person making it must be
near death or that the 'circumstance' can only include the acts done when and
where the death was caused. -Dying declarations are admissible under this
clause".
The alleged oral statements of Manju and what
she has stated in her letters, Exs 30, 32 and 33 may relate to matters perhaps
having a very remote bearing on the cause or the circumstances of her death.
Those circumstances do not have any proximate relation to the actual occurrence
resulting in her death due to potassium cyanide poison, though, as for instance
in the case of prolonged poisoning they may relate to dates considerably
distant from the date of the actual fatal dose. They are general impressions of
Manju indicating fear or suspicion. whether of a particular individual or
otherwise and not directly related to the occasion of her death. It is not the
case of the prosecution that the present case is one of prolonged poisoning.
Since it is stated by the learned authors woodroffe and Amir Ali in their
tratise at page 947 that the decision of their Lordships of the Privy Council in
Pakala Narayanaswami v. Emperor (1) sets the limit of the matters that could
legitimately be brought within the purview of the expression 'circumstances of
the transaction and that decision is referred to in several other decisions of
our courts, it would be necessary to extract the relevant passage in this
judgment. The learned Lords have observed at pages 75 and 76 thus:
"A variety of questions has been mooted
in the Indian courts as to the effect of this section. It has been suggested
that the statement must be made after the transaction has 191 taken place, that
the person making it must be at any rate near death, that the
"circumstances" can only include the acts done when and where the
death was caused. Their Lordships are of opinion that the natural meaning of
the words used does not convey any of these limitations. The statement may be
made before the cause of death has arisen, or before the deceased has any
reason to anticipate being killed. The circumstances must be circumstances of
the transaction: general expression indicating fear of suspicion whether of a
particular individual or otherwise and not directly related to the occasion of
the death will not be admissible. But statements made by the deceased that he
was proceeding to the spot where he was in fact killed, or as to his reasons
for so proceeding, or that he was going to meet a particular person, or that he
had been invited by such person to meet him would each of them be circumstances
of the transaction, and would be so whether the person was unknown, or was not
the person accused. Such a statement might indeed be exculapatory of the person
accused. "Circumstances of the transaction" is a phrase no doubt that
conveys some limitations. It is not as broad as the analogous use in
"circumstantial evidence" which includes evidence of all relevant
facts. It is on the other hand narrower than "re gestae"
Circumstances most have some proximate relation to the actual occurrence:
though, as for instance in a case of prolonged poisoning, they may be related
to dates at a considerable distance from the date of the actual fatal
dose." I am, therefore of the opinion that the oral evidence of these
witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told
them against the appellant and or his parents and what the has stated in her
letters, Exs. 30 32 and 33, are inadmissible in evidence under s.32(1) of the
Evidence Act and cannot be looked into for any purpose. At this stage. it may
be stated that Mr. Ram Jethmalani, learned counsel for the appellant submitted
that the said oral evidence of those five witnesses is inadmissible under s.
32(1) though at first he sought to rely upon the letters, Exs 30, 32 and 33
which seem to lend support to the defence theory that it may be a case of suicide,
he ultimately conceded that what applies to the relative oral evidence of P.Ws.
2, 3, 5, 6 and 20 would equally apply to the letters, Exs. 30, 32 and 33 and
that they too would be inadmissible 192 in evidence. The Additional Solicitor
General who had strongly relied upon the said oral evidence of these five
witnesses and the letters, Exs. 30, 32 and 33 at first proceeded in the end of
his arguments on the basis that they are inadmissible in evidence. In these
circumstances, I am firmly of the opinion that the oral evidence of P.Ws. 2, 3,
5, 6 and 20 about what Manju is alleged to have told them against the appellant
and or his parents as well as the letters, Exs. 32, 32 and 33 are inadmissible
in evidence under s. 32(1) of the Evidence Act.
About Dr. Banerji (P.W. 33) who conducted
autopsy on the body of Manju what my learned brother Fazal Ali, J. has said in
his judgment is this:
"In column 5 of postmortem notes Dr.
Banerjee has clearly written 'can be a case of suicidal death' which indicates
that in the absence of the report of the Chemical Examiner he was of the
opinion that it could have been a case of suicide. In his evidence P.W 33 has
stated that in Ex. 128 in column No. 5 the contents scored out read 'time since
the death' and since it was repeated in the next line he scored out the words
in the second line. Despite persistent cross-examination the Doctor appears to
have stuck to his stand. It cannot, therefore, be gainsaid that this matter was
of vital importance and expected the High Court to have given serious attention
to this aspect which goes in favour of the accused.... In the original while
filling up the said column the Doctor appears to have scored out something. The
filled up entry appears thus:-'mouth is closed with tip (something scored out)
seen caught between the teeth. But in the carbon copy of the report which was
sent to the Chemical Examiner (Ex. 132 he has written 'caught between the
teeth' in ink; but in the original there is something else. This is fortified
by the fact that the copy of the report actually sent to the Chemical Examiner
does not contain any interpolation against the 'said column where the filled up
entry reads 'inside mouth'.. These circumstances show that Dr. Banerjee
(P.W.33) tried to introduce some additional facts regarding the position of the
tongue .
. . This, however, throws a cloud of doubt on
the correctness or otherwise of the actual reports written by him and the one
that was sent to the Chemical Examiner. It is obvious that in the carbon copy
which was retained by the Doctor 193 the entries must have been made after the
copy was sent to the Chemical Examiner".
I entirely agree with these findings of my
learned brother Fazal Ali, J. But I am unable to share his view that these
"circumstances are not of much consequence the opinion of the Doctor was
that Manju died by forcible administration of potassium cyanide or by the
process of mechanical suffocation and that this aspect need not detain the
Court any further because the High Court has not accepted the case of
mechanical suffocation" and that though a number of comments were made on
behalf of the appellant about Dr.
Banerji's integrity and incorrect report he
does not find any substance in those contentions subject to what he has stated
about him.
The fact that the High Court has rejected the
case of the prosecution based on Dr. Banerji's report and evidence that it was
also a case of mechanical suffocation is not one that could be taken into
consideration as a mitigating circumstance in judging the conduct of the Doctor
who had conducted the autopsy in a case of suspicious death. The fact that he
had reserved his opinion about the cause of death and had then noted in his
report that the tongue was inside the mouth but has interpolated the words 'mouth
is closed with tip (something scored out) seen caught between the teeth' and
'caught between the teeth' only after receipt of the Chemical Examiner's report
to support the view that it was also a case of mechanial suffocation, is not a
mitigating circumstance in favour of P: W. 33 The Doctor had scored out the
words 'can be a case of suicidal death' and has persisted in his reply that he
had scored out only the words 'time since the death' which he claims to have
written twice, which explanation has been rightly rejected by my learned
brother Fazal Ali. J. The conduct of the Doctor in making these later inter
polations and alterations in the records of the postmortem examination in the
case of suspicious death in which the appellant has been sentenced to death by
the two courts below, deserves serious condemnation. The Doctor has tampered
with material evidence in the case of alleged murder, may be at the instance of
somebody else, ignoring the probable consequences of his act. In these
circumstances, I am of the opinion that Dr. Banerji (P.W.33) is a person who
should not be entrusted with any serious and responsible work such as
conducting autopsy in the public interest. In this case the appellant would
have gone to gallows on the basis of the evidence of P.W.33 as he would have
the 194 court to believe it, and theo ther evidence, if they had been accepted,
but they have been rightly discarded by my learned brother Fazal Ali, J. as
unworthy of acceptance against the appellant.
I agree with my learned brother Fazal Ali, J.
that the High Court has clearly misdirected itself on many points in
appreciating the evidence and has thus committed a gross error of law.
I feel that something has to be stated in the
judgment in this case about the way the Investigating officer and the learned
Additional Sessions Judge, Pune who had tried the case had gone about a their
business. Charge No. 3 is against the third accused for instigating Mohan Asava
(P.W.
30) to give false information to the police
regarding the offence of murder namely, that the appellant found Manju dead
when he tried to wake her up at 5.30 a.m. on 12.6.1982.
It is the case of the prosecution itself that
P.W.30 informed the police accordingly at 7 or 7.15 a.m. on that day after
receipt of telephonic instructions from the third accused at 6.30 a.m. though
he had himself seen the dead body of Manju earlier in the appellant's flat
where he was taken by the third accused who had gone to his flat at about 4 or
4.15 a.m. and informed him that Manju was dead, and he (P.W.30) left the
appellant's flat a little later at about 5 or 5.15 a. m. after telling Dr.
Lodha (P.W. 34) that he was going to report to the police. Thus, it would
appear that the case of the prosecution itself is that P.W. 30 is the principal
offender as regards giving false information to the police about the death of
Manju. Yet the Investigating officer had not filed any charge-sheet against
P.W. 30 but has conveniently treated him as a prosecution witness. The
Additional Sessions Judge, Pune appears to have exercised no control over the
evidence that was tendered in this case and to have been oblivious of the scope
of the examination of the accused under. s. 313 Cr. P.C. This is reflected by
some of the questions put to the appellant. Question No. 24 relates to P.W. 20
not maintaining good health and falling ill now and then. Question No. 25
relates to P.W. 22 being a patient of high blood pressure and having suffered a
stroke of paralysis 7 years earlier. Question No. 30 relates to a reception
held at Pune on 13.2.1982 in connection with the appellant's marriage with
Manju. Question No. 32 relates to P.W. 6 asking the appellant's father
Birdhichand for permission to take Manju to Beed with her when the party from
P.W.2's side started from Pune for Beed on 14.2.1982.
Question No. 115 relates to P.W.30 indulging
in criminal acts of rowdyism, tax evasion etc, and being known as a contact-man
of the police. S. 313 Cr. P. C.
195 lays down that in every inquiry or trial
for the purpose of enabling the accused personally to explain any circumstance
appearing in the evidence against him the Court may at any stage, without
previously warning the accused, put such questions to him as the court
considers necessary and shall, after the witnesses for the prosecution have
been examined and before he is called for his defence, question him generally
on the case. It is clear that the evidence on the basis of which the above
questions have been put to the appellant is wholly irrelevant and that those
questions do not relate to any circumstance appearing in the evidence against
the appellant. The learned Additional Sessions Judge was bound to exercise
control over the evidence being tendered in his court and to know the scope of
the examination of the accused under s. 313 Cr. P. C.
In the end, as I said earlier, I agree with
my learned brother Fazal Ali, J. that the appeal has to be allowed.
Accordingly I allow the appeal and set aside
the conviction and sentence awarded to the appellant and direct him to be set
at liberty forthwith.
SABYASACHI MUKHARJI, J. I have the advantage
of having read the judgments prepared by my learned brothers Fazal Ali, J. and
Varadarajan, J. I agree with the order proposed that the appeal should be
allowed and the judgments of the courts below should be set aside and the
appellant Sharad Birdhichand Sarda be acquitted of the charges framed against
him and he should be released forth with. I do so with some hesitation and good
deal of anxiety, because that would be interfering with the concurrent findings
by two courts below on a pure appreciation of facts. The facts and
circumstances have been exhaustively and very minutely detailed in the judgment
of my learned Brother Fazal Ali, J. Those have also been set out to certain
extent by my Brother Varadarajan, J.
It will therefore serve no useful purpose to
repeat these here. It is necessary, however, for me to make the following
observations.
It is a case of circumstantial evidence. It
is also undisputed that the deceased died of potassium cyanide on the night of
11th and 12th June. 13th June was the date fixed for the betrothal of the
sister of the accused. There is no evidence that the accused was in any way
hostile or inamicable towards his sister. The deceased had a very sensitive
mind and occasionally had suffered from mental depression partly due to the
fact of adjusting in a new family and partly due to her peculiar mental makeup
but mainly perhaps due to the family set up of the accused husband. There is no
direct 196 evidence of administering poison. There is no evidence either way
that either the deceased or the accused had in her or his possession any
potassium cyanide. In these circumstances my learned brothers, in view of the
entire evidence and the letters and other circumstances, have come to the
conclusion that the guilt of the accused has not proved beyond all reasonable
doubt.
As I have mentioned before, I have read the
two judgments by my two learned brothers and on some points namely, four points
mentioned in the judgment prepared by my Brother Varadarajan. J., he has
expressed views different from those expressed by Fazal Ali, J. and these are:-
(1) ill-treatment of Manju by the appellant;
(2) intimacy of the appellant with Ujwala
(P.W.37);
(3) admissibility of Manju's letters Exs. 30,
32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged
complaints made by Manju against the appellant under s.32(1) of the Evidence
Act; and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body
of Manju.
On the three points, namely ill-treatment of
Manju by the appellant, intimacy of the appellant with Ujwala (P.W.37) and the
conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju,
I would prefer the views expressed by my learned brother Fazal Ali, J. On the
question of admissibility of Manju's letters Exs. 30, 32 and 33 and the oral
evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju
against the accused under section 32(1) of the Evidence Act, my learned brother
Fazal Ali, J. has observed about section 32(1) as follows:- "The test of
proximity cannot be too literally construed and practically reduced to a
cut-end-dried formula of universal application so as to be confined in a
straitjacket. Distance of time would depend or vary with the circumstances of
each case. For instance, where death is a logical culmination of a continuous
drama long in process and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the drama 197 would be
admissible because the entire statement would have to be read as an organic
whole and not torn from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as being a part of the
transaction of death. It is manifest that all these statements come to light
only after the death of the deceased who speaks from death.
For instance, where the death takes place
within a very short time of the marriage or the distance of time is not spread
over more than 3-4 months the statement may be admissible under s.32."
(Emphasis by me).
I would, however, like to state here that
this approach should be taken with great deal of caution and care and though I
respectfully agree with Fazal Ali, J. that the test of proximity cannot and
should not be too literally construed and be reduced practically to a
cut-and-dried formula of universal application but it must be emphasised that
whenever it is extended beyond the immediate, it should be the exception and
must be done with very great caution and care. As a general proposition, it
cannot be laid down for all purposes that for instance where a death takes
place within a short time of marriage and the distance of time is not spread
over three or four months, the statement would be admissible under section 32
of the Evidence Act. This is always not so and cannot be so. In very
exceptional circumstances like the circumstances in the present case such
statements may be admissible and that too not for proving the positive fact but
as an indication of a negative fact, namely raising some doubt about the guilt
of the accused as in this case.
For the purpose of expressing my respectful
concurrence with the views of Justice Fazal Ali, it is not necessary for me to
agree and I do not do so with all the detailed inferences that my learned
brother has chosen to draw in respect of the several matters from the exhibits
in this case. I am also with respect not prepared to draw all the inferences
that my learned brother has chosen to draw in the paragraph beginning with the
expression "the careful perusal of this letter revealed the following
features". This my learned brother was speaking in respect of Ex. 33. I
however, respectfully agree with my learned brother when he says that a close
analysis and ading of the letter namely Ex. 33 clearly indicates:
198 (a) that the deceased was extremely
depressed.
(b) That there was a clear tendency resulting
from her psychotic nature to end her life or commit suicide.
Similarly I have some hesitation about the
English rendering of Ex. 32 which is letter dated 8th June, 1982 which has been
set out by my learned brother and which has been set out in his judgment which
contains the expression "I do not know why there is such a dirty
atmosphere in the house?" As the original letter was read out in Court and
we had the advantage of that, I am inclined to take the view that the correct
and the more expressive expression would be "I do not know why there is
such a foul atmosphere in the house?" Read in that light and in the
context of other factors, this letter causes some anxiety. It the deceased was
sensing foul atmosphere, why was it? But this again is only a doubt. It does
not prove the guilt of the accused.
In view of the fact that this is a case of
circumstantial evidence and further in view of the fact that two views are
possible on the evidence on record, one pointing to the guilt of the accused
and the other his innocence, the accused is entitled to have the benefit of one
which is favourable to him. In that view of the matter I agree with my learned
brothers that the guilt of the accused has not been proved beyond all
reasonable doubt.
In the premises as indicated before, I agree
with the order proposed.
S.R. Appeal allowed.
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