PATNA HIGH COURT (DB)
R.N. Sahay and P.K Deb, JJ
Archi Nawal Kishore Kujur - Appellant
versus
State of Bihar - Respondent
Criminal Appeal No.6 of 1992
Decided on 6-2-1995
Counsel for the parties:
For the Appellant: P.S. Dayal & Kiran Choubey.
For the Respondent: I.N. Gupta.

Headnote:Indian Penal Code, 1860 - Section 302/201 - Conviction under – Appeal - Death by burning - Only circumstantial evidence - Unnatural death - Prosecution case of committing murder of wife and then burning dead body - Accused, un IAS officer - Motive not established - Only accused and deceased being present in house at time of occurrence - Defence case of accidental fire - Accused informing police after occurrence - No evidence to prove killing by strangulation - No medical report to distinguish between ante-mortem and post-mortem injury Medical report of death by mechanical asphyxia - Infirmities in prosecution case - Strong doubt about conduct of accused - However, evidence on record not sufficient to convict accused - He is entitled to benefit of doubt.

       Held: Admittedly only the accused and the deceased were present in the house at the relevant time of occurrence so it was the accused who can be the best person to explain the incident because definitely the death was an unnatural one. The explanation given by the accused shall be taken into consideration in the facts and circumstances of the case. In such sort of cases, nowadays always finger is raised and pointed out towards the husband or the in-laws. Here the question of in-laws are not there. Only the husband is there. The husband and the wife both have spend their young life happily as is presumed from the fact that they had grown up three children at the alleged time of occurrence. The brother of the deceased, PW 8, namely, David Hector Philip had practically pointed out towards the bad relationship between the husband and the wife and has also brought in the story of illicit relationship of the accused with alleged Usha Rani of Hazaribagh and he has mentioned that his sister complained to him about two years back that her husband was indulged in illicit relationship with alleged Usha Rani Singh. But this has also brought in evidence from the side of the defence that the children of Usha Rani Singh had considered the accused and the deceased their god father and god mother, which I show that the relationship between two families were having much sanctity than the alleged illicit relationship. (Para 10)

       Further Held: On close scrutiny of the post mortem report and the doctor's opinion in that respect, I am of the opinion that in this case it cannot be held positively and beyond all reasonable doubt that the bum injuries caused on the person of the deceased were due to post mortem bums made by the accused or somebody else after the deceased was made to death either by strangulation or by suffocation. The strangulation death has already been negatived by the doctor himself who was one of the party in the autopsy held on the dead body of the deceased. The carbon monoxide were found on the nostrils and on the vocal cods which might rather display about the ante mortem burn injury. (Para 17)

       The possibility of the defence story is already there when it could be found that there was two or more burnt match sticks inside the kitchen. Only because the articles in the kitchen were found to be properly arranged, it does not go to show that the defence story of preparing of food by the deceased was belied. The deceased might have tried to bum the match stick for getting the food prepared already hot in Gas Stove and before doing so, she caught on fire by the match stick. (Para 20)

       Consequently Held: There were sufficient grounds of strong suspicion against the accused appellant. He being a well educated responsible officer had not made any attempt to save the life of the deceased by calling the neighbours and then sending her for medical treatment rather waited till her death and then to inform the police. This is definitely unnatural for a normal human being of his status. The neighbours were also not called. But, it has been stated in the information lodged by the accused-appellant that neighbours had arrived at the place of occurrence after the occurrence. There is no denial to this fact from the side of the prosecution totally but they wanted to show from the evidence of PW 9 that even next door neighbaur could know about the occurrence only on thy next date. Even if the circumstances stated above creates a strong doubt about the conduct of the accused which might be relevant under Section 8 of the Evidence Act, but, as I have stated earlier those suspicious cannot take the place of proof when the prosecution failed to bring book conclusive evidence of murder against the accused-appellant. It should also be mentioned here that all the alleged circumstances which went against the accused-appellant have not been put to the accused-appellant under Section 313, Cr. P.C. for the purpose of explanation and as such taking all those circumstances without having explanation from the accused-appellant should not be taken into account for the purpose of conviction against the accused. (Para 24)

       Result: Appeal allowed. Conviction set aside.