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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
A.A. Desai G.D. Patil, JJ.
State of Maharashtra through the Police Station Officer, Murtizapur .... Appellants.
Versus
Prabhudayal s/o Hiralal Dajjuka and others.... Respondents.
Criminal Appeal No. 148 of 1989, decided on 16-11-1992.
Advocates appeared :
H. Ahmed, A.P.P., for the appellant State.
Sarvashri M.R. Daga and Chatterjee, for respondents Nos. 1 and 2.
M.M. Agarwal, for respondents Nos. 3 and 4.
Concession of counsel not binding. Open for judge as a judicial duty to scan material on record and reach to his own conclusion.
Section 221-Penal Code, 1860-Sections 302 and 306-Framing of charge in alternative-Case of Bride burning-Charge framed originally under Section 302 of Penal Code-Charge also framed under Section 306 of Penal Code belatedly-Effect-Originally framed charge under Section 302 of Penal Code not automatically wiped out-Court has a duty to consider both of them.
No doubt, Section 306 of the I. P. C. envisages suicidal death, it undisputedly excludes homicidal death. However, subsequent framing of the charge under Section 306 does not, by itself, wipe out the charge earlier framed under Section 302 of the I. P. C. Such additional charge is always in the alternative and not by way of substitution. For the purposes of trial and adjudication both the charges do co-exist. They are not mutually exclusive. However, ultimate conviction can only be recorded for either of them. Complexity of the facts in a particular set of circumstances may lead to uncertainty. A particular charge even if apparent, as the facts and circumstances which are intricate and overlapping, may not rule out the probability of another charge. Some time such fact may constitute more than one charges. In such eventuality recourse to frame charges in addition or in the alternative is legally permissible. The same is statutorily recognised by Section 221 of the Code of Criminal Procedure.
Section 3-Bride burning-Appreciation of evidence in case of-Deceased daughter-in-law of accused-Death in unnatural circumstances-No convincing explanation by accused-Effect.
As per spot panchnama and the testimony of witnesses it is apparent that the place of incident where the dead body was noticed even otherwise had no access to the outsider Accused persons with two sons of accused No. 1 were the only inmates of the house. Homicidal death coupled with burning resulting in 100% injuries to deceased occurred while she was in their custody. The incident with its gravity and extent cannot, in any manner to, go unnoticed. As such not only it was obligatory but they were duty bound to offer plausible explanation. However, the accused persons consistently and ca1cnlately refused to offer any explanation or made an endeavour to clarify any circumstance leading to homicidal death of the deceased. This incriminates them into the crime.
Sections 3 to 8.
See I. P. C., 1860, Sections 302 and 306.
Sections 302 and 306.
See, Cr. P. C. 1973, Section 221.
Sections 302 and 306-Death by burning-Facts not available to draw inference of death by suicide.
In absence of any positive evidence, one has to presume normal state of affairs of normal person. One can not imagine self-immolation on supernatural strength. One has to visualise normal conduct of a person with common virtues. Inference of suicide also not supportable on facts. Held, it could not be said that it was suicidal death.
Sections 302 and 306-Evidence Act, Sections 3 to 8-Death by burning &Whether case of bride burning-Accused in-laws of deceased-Conduct of accused consistent with guilt-Circumstances panting to their guilt.
Held, death was homicidal caused by accused and not suicidal.
Sections 302 and 306- Death by burning whether homicidal or suicidal Deceased daughter-in-law of family of accused.
Taking into account illtreatment meted out to deceased, her pregnancy at the time of death, medical evidence indicating protruding of eyeball and tongue and bleeding from nose and mouth r/w testimony of P. W. 1, death was homicidal and not suicidal.
2. The facts leading to the prosecution are precisely as thus —
On 28-4-1984 deceased Sangita, daughter of P.W. 8 Madanlal of Paratwada, district Amravati got married with Accused No. 2 Rajkumar s/o accused No. 1 Prabhudayal and accused No. 3 Smt. Sushilabai. Accused No. 4 Ku. Mohani is also their daughter. After marriage deceased Sangita started residing at her matrimonial place at Murtizapur, district Akola with accused persons. Between the night of 14th and 15th September, 1984 Sangita was found dead in a mysterious circumstances in the compound of rear side of the residential premises of the accused. Accused No. 1 Prabhudayal at about 3.45 a.m. on 15-9-1984 submitted a report vide Ex. 82, wherein he has stated that at about 2.10 a.m. in the night Sangita was found to be burnt and died in the bath room. P.W. 9 Mundhe gave instructions to the accused persons not to disturb the situation. Initially on the report accidental death was registered. P.W. 9 Mundhe reached to the spot on 15-9-1984 at about 10 a.m. He drew spot panchanama vide Ex. 63. He also attached a post card half burnt and found by the side of the dead body marked as Ex. 62. He thereafter drew inquest panchanama vide Ex. 64. P.W. 5 Bhanudas acted as a panch. P.W. 9 Mundhe since convinced that it being a case of murder, lodged a report on behalf of the State registering the offence punishable under section 302 read with section 34 of the I.P.C. P.W. 3 Dr. Lande on 15-9-1984 at about 5 p.m. conducted the autopsy. P.W. 9 Mundhe, Investigating Officer after recording the police statements amongst others of P.W. 1 Shivraj, who is the resident of neighbourhood and P.W. 2 Bahadursingh, who was a Gurkha engaged for patrolling duty, submitted the final report of the investigation.
3. The learned Additional Sessions Judge, on the basis of material on 30-9-1984 framed a charge under section 302, 498-A and 201 read with section 34 of the Indian Penal Code. Accordingly he proceeded to record the evidence of P.W. Nos. 1 to 8. Thereafter by order dated 22-8-1988 the learned Judge framed the additional charge for the offence punishable under section 306 read with section 34 of the I.P.C. It is reported that challenge to this order ultimately failed. Accused persons were accordingly tried. Their defence was consistently of total denial.
4. It appears that during the course of arguments the learned prosecutor did not think it proper to press for the offence punishable under section 302 read with section 34 of the I.P.C. since according to him the same is based on conjectures of Investigating Officer. According to the prosecutor, the only case made out from the material was for the offences punishable under sections 306, 498-A read with section 34 of the I.P.C. The learned Judge merrily endorsed the statement as made. He has not discussed the relevant evidence. He has not even cared to frame the point of determination in this behalf. The learned judge has commented that the evidence in this regard is of inferential in nature. The charge under section 302 read with section 34, therefore, cannot be sustained. Accordingly he recorded the finding of acquittal. He further held that the charge for the offence punishable under section 201 as a consequence obviously does not survive.
The learned Judge has observed that "Sangita died due to 100% burn injuries causing shock with asphyxia and it was not an accident, leave the only inference that she committed suicide; this fact not only is not disputed but even admitted and hence needs no further discussion. "He further held while answering the point for determination that prosecution failed to prove that the accused persons with their common in
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