Sanjay Dwarka Rai vs State Of M.P.

on 20 March, 1997

Madhya Pradesh High Court

Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997
Equivalent citations: 1997 (2) MPLJ 681
Author: V Agarwal
Bench: V Agarwal, N Singh
JUDGMENT V.K. Agarwal, J.

1. This appeal is directed against the Judgment dated 15-1-1993 in S. T No. 83/1991 by I Additional
Sessions Judge, Shahdol whereby the accused/appellant Sanjay Rai has been convicted for offence
punishable Under Section 302 of the Indian Penal Code and sentenced to life imprisonment and
fine of Rs. 200/-; also for offence punishable Under Section 201 of the Indian Penal Code to R.I. for
3 years and fine of Rs. 200/-, in default of payment of fine, he has been sentenced to undergo S.I. for
2 months on each of the above counts.

2. The deceased Anita Rai was married to the appellant on 14-12-1990 at Allahabad (U.P.),
whereafter she came to Dhanpuri along with the accused/appellant on 15-12-1990. Anita Rai died on
25-12-1990 at Dhanpuri in her room in their house. Written report about the incident (Ex.P/14) was
lodged by the appellant at P. S. Amlai, District Shahdol on 25-12-1990 at 11.00 P.M. It was reported
in Ex. P/14 by accused/appellant Sanjay Rai that he had gone to the house of Rajendra Sharma and
had returned from there at about 9.00 P.M. and went to his room. The room was bolted from inside.
On being pushed, the latch fell down and the door opened. He found that his wife, deceased Anita,
was hanging from the bolt of the almirah, upon which he caught hold of her by the waist and called
his father, who cut the piece of cloth by which Anita was hanging. Thereafter, Dr. Gautam (P.W. 1)
and Dr. Pathak (P.W. 2) were called, who advised them to take Anita to the hospital where she was
declared dead. On the basis of the above report, merg intimation (Ex. P/15) was recorded.

3. Investigating Officer, P. K. Singh (P.W. 16) went to the spot on 26-12-1990 and prepared inquest
report of the dead body of Anita (Ex.P/4). The dead body was sent for post-mortem examination, as
per requisition (Ex. P/13). Post-mortem on the dead body of Anita was conducted by a team of six
doctors, including Dr. M. D. Shukla (P.W. 12), who found the following injuries on her person :-

(1) A well marked reddish bruise measuring 1" x 1/2" placed horizontally, over left side of neck at the
level of thyroid cartilage 11/2" lateral to midline;

(2) An ill defined irregular in shape reddish bruise measuring 2" x 1/2" was placed obliquely on the
left side of neck, just above and lateral to injury No. 1, 1" below the angle of left mandible;

(3) III defined reddish bruise, 3" long and 1/2" broad on medial end and 1" broad on lateral end
present on right side of neck extending from 1" lateral to midline of the neck to the area behind right
ear;

(4) A linear abrasion and scar 1/2" long placed vertically over dorsal aspect of hand at the level of
wrist towards radial border ante mortem in nature.

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

It was opined that the above injuries 1 to 3 are fresh caused by blunt object ante-mortem in nature,
while Injury No. 4 caused by blunt and pointed object within 25 to 48 hours. According to the
opinion of the team of doctors, mode of death of deceased was asphyxia. However, the cause of
asphyxia could not be ascertained. The viscera and the clothes of the dead body were sent for further
analysis to detect any other associated cause or mode. Death occurred more than 24 hours and less
than 48 hours of post-mortem examination. The report of viscera is Ex. P/23, which indicates that
no chemical poison was detected therein.

4. P. K. Singh (P.W. 16) sent queries, as per Ex. P/11, which were answered, as per Ex. P/12, whereby
it was opined that even in case of hanging, ligature marks may be absent and that the presence of
ligature mark would depend on the nature of ligature and the time for which the body remained
hanging. It was also opined that asphyxia could have resulted, even if the body was hanging by a
piece of cloth, which was cut immediately after hanging. It was found during investigation that the
accused/appellant and the acquitted co-accused Dwarika Rai and Geeta Devi, who are the parents of
the appellant, used to demand dowry and treated the deceased with cruelty. Accordingly, First
Information Report (Ex. P/24) was recorded by the Investigating Officer, P. K. Singh (P.W. 16) for
offence punishable Under Section 306 r/w Section 34 of the Indian Penal Code. Spot Map (Ex.P/1)
was prepared by Investigating Officer, P. K. Singh (P.W. 16). After other usual formalities, during
investigation and after completing the investigation, charge-sheet against the accused/appellant and
other co-accused was filed.

5. The learned I Additional Sessions Judge, Shahdol framed charge for offences punishable Under
Section 302 r/w Sections 34, 304B and 201 of the Indian Penal Code, against the appellant as well
as the co-accused Dwarika Prasad and Geeta Devi. They pleaded not guilty. The defence of the
accused/appellant was that on the date of incident, i.e., on 25-12-1990, he had returned back to his
house at night time and went to his room, which was bolted from within. Upon pushing the door, it
opened and he found that the deceased Anita was hanging by the bolt in the almirah. He caught hold
of her by waist and called his father. Cloth was cut by scissors and doctors were called. He is being
falsely implicated because Anita committed suicide.

6. The learned trial Court found that no offence has been proved against the acquitted co-accused
Dwarika Prasad and Geeta Devi, parents of the accused/appellant and they were accordingly
acquitted of the charges. It has also been found on appreciation of evidence that allegation of
demand of dowry and cruelty meted out to the deceased was not borne out by the prosecution
evidence and, therefore, the appellant was acquitted of offence punishable Under Section 304B of
the Indian Penal Code. The appellant was, however, found guilty for having intentionally caused the
death of Anita and for having hung her body to make it appear that she had hanged herself and thus
was convicted for offences punishable Under Sections 302 and 201 of the Indian Penal Code and he
was sentenced therefor, as has been mentioned earlier.

7. The learned counsel for the accused/appellant has assailed the finding of the learned trial Court
that the appellant had caused the death of Anita by strangulating her and has urged that though the
cause of death of Anita was asphyxia but the team of six doctors had not opined that it was on
account of strangulation. Therefore, the inference drawn by the learned trial Court, in this regard,

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

cannot be sustained in the circumstances of the case. It has been urged that since the death of
deceased Anita is not proved to be homicidal, that accused/appellant could not have been convicted
Under Section 302 or Under Section 201 of the Indian Penal Code.

8. It has further been urged that the entire prosecution case rests on circumstantial evidence and,
therefore, the circumstances from which the conclusion of guilt is to be drawn should not only be
fully established, but also the facts so established should be consistent only with the hypothesis of
guilt of the accused. Reliance in this connection was placed on Hanumant Govind Nargundkar v.
State of Madhya Pradesh, AIR 1952 SC 343. It has also been urged that suspicion howsoever strong
could not be the basis of conviction, as has been laid down in Palvinder Kaur v. The State of Punjab,
AIR 1952 SC 354. It has, further been urged that since the possibility of suicide cannot be ruled out
in the instant case, even if the other view of homicide was possible, the view in favour of the
accused/appellant should have been taken. In this connection, reliance has been placed on Sharad
Birdhichand Sarda v. Stale of Maharashtra, AIR 1984 SC 1622.

9. In the instant case, there is no eye-witness account of the incident. The appellant had submitted a
written report (Ex. P/14) dated 25-12-1990 in which he has stated that while his parents were
watching T. V. and his wife the deceased Anita was in her room, he went there to call her. The door
was closed from inside, which got opened on his pushing the same. He found that his wife Anita was
hanging from the bolt in the almirah, whom he supported by catching hold of her waist and called
his father, who cut the cloth from which she was hanging. Thereafter, Dr. K. K. Gautam (P.W. 1) and
Dr. D. K. Pathak (P.W. 2) were called. On the basis of the above report, merg intimation (Ex. P/15)
was recorded.. After conducting enquiry regarding the incident, First Information Report (Ex. P/24)
was recorded by Station House Officer and Investigating Officer P. K. Singh (P.W. 16) and an offence
Under Section 306 of the Indian Penal Code was registered. It is stated in the FIR that the deceased
committed suicide, as she was being harassed on account of non-fulfilment of demand for dowry.
The police continued to treat the case as that of suicide, even after investigation, as would appear
from the various documents of the prosecution filed in the case. However, it appears that the
charge-sheet for offences punishable Under Sections 304B, 302 r/w Section 34 of the Indian Penal
Code has been filed by P. S. Amlai against the appellant and the acquitted co-accused, his parents
Dwarika Rai and Smt. Geeta Devi.

10. It is pertinent to note that there is no material on record of the trial Court, indicating as to on
what basis, at a later stage, allegations were levelled that an offence punishable Under Section 302
of the Indian Penal Code was committed by the appellant and other accused persons. Further, it
may also be noticed that the learned trial Court, on appreciation of evidence, has disbelieved the
prosecution evidence regarding the demand of dowry by the accused persons and has acquitted the
appellant and other accused from the charge Under Section 304B of Indian Penal Code of causing
dowry death of Anita.

11. In the above circumstances, it may be noticed that though the prosecution has feebly tried to
suggest that there was demand of dowry and has examined Kuldeep (P.W. 10) the brother of
deceased in this regard. However, in view of the basic infirmities found in his statement regarding
the demand and harassment to the deceased and the admission of his father, J. P. Gupta (P.W. 7)

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

that a letter was written by him to co-accused Dwarika Rai stating that his son Kuldeep had returned
after attending reception of marriage of deceased and appellant, fully satisfied and that he felt
happy. Therefore, Kuldeep (P.W. 10) did not report to his father about any demand of dowry, etc. as
has been tried to be stated by him afterwards during trial. Therefore, obviously the allegation of
demand of dowry is simply an afterthought and an improvement in order to involve the appellant.
The learned trial Court has rightly held that the evidence regarding the demand of dowry is not
worthy of credence.

12. Thus, neither there was a demand of dowry nor there was any other motive for the appellant to
have committed the murder of his newly married wife, which is a very major consideration to be
kept in view, while considering the various circumstances leading to the death of Anita.

13.The defence of the accused is that Anita committed suicide by hanging, While the learned trial
Court, repelling the above defence, has held that she was strangulated by appellant and thus met
with homicidal death. Therefore, now we shall proceed to consider the basic question involved in
this case as to whether death of Anita was suicidal or homicidal?

14. In this context, we may advert to the statement of Dr. M. D. Shukla (P.W. 12), who had
conducted the post-mortem examination on the dead body of deceased Anita along with five other
doctors. He has stated that as per post-mortem report (Ex. P/10), there was post-mortem lividity on
buttock, thighs and legs. There were following injuries :-

(1) Well-marked reddish bruise measuring 1" x ½" placed horizontally over left side of neck at the
level of thyroid cartilage 1½" lateral to midline;

(2) An ill-defined irregular bruise size 2" x ½" obliquely on the left side of neck, just above and
lateral to injury No. 1, 1" below left mandible;

(3) Ill-defined reddish bruise 3" long and V2" broad on medial end and 1" broad on lateral end
present on right side of neck, extending from 1" lateral to mid-line of the neck to the area behind left
ear;

(4) A linear abrasion scar 3/4" long placed vertically over dorsal aspect of hand at the level of wrist
towards radial border, ante-mortem in nature;

He has also stated that ecchymosis was present under injuries Nos. 1 to 3. However, thyroid
cartilage and hyroid bone was not fractured.

15. Dr. M. D. Shukla (P.W. 12) had further stated that reply (Ex. P/12) to query (Ex. P/11) made by
Police Amlai, was sent, by which it was opined that in case of hanging, asphyxia could result even if
the body is lifted immediately and that in that event ligature mark may or may not be present
depending upon the time for which the body remained hanging and also on the nature of ligature. It
was further clarified in reply, Ex. P/12 that the presence of ligature is not necessary even in case of
hanging. Therefore, from the statement of Dr. M. D. Shukla (P.W. 12) and from the opinion

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

expressed by the team of doctors, it appears that the ligature mark may or may not be present even
in the case of death by hanging and that its presence depends on the time for which the body
remained suspended and the nature of ligature used.

16. It may also be noticed that Dr. M. D. Shukla (P.W. 12) has in his cross-examination, admitted
that in case of hanging, injuries as found on the person of deceased Anita could be caused. Further,
he has stated that it is not necessary that in case of hanging, thyroid cartilage and hyroid bone must
be fractured. He has in para 25 of his statement also admitted that they did not find any signs of
strangulation, i.e., swelling in the tongue, scratch or any teeth bite etc. on the body of deceased
Anita.

17. Therefore, the above statement of Dr. Shukla (P.W. 12) as well as the post-mortem report (Ex.
P/10) does not indicate that the death of Anita occurred on account of strangulation and the
possibility of death by hanging could not be ruled out from the above material.

18. The learned trial Court has differed from the above view and opinion expressed by Dr. Shukla
(P.W. 12) and has recorded a finding that death of Anita was not due to hanging but was on account
of strangulation. In this connection, the trial Court appears to have made references to some text
books on Medical Jurisprudence including that of Modi's and Taylor's Medical Jurisprudence and
Toxicology and has concluded that since there was absence of ligature mark and absence of
dribbling of saliva and since blood in the nose and mouth was present, the death could not have
been on account of strangulation.

19. The learned counsel for the appellant has mainly urged in this connection that the learned trial
Court erred in relying upon the extracts of the text books of Medical Jurisprudence, without those
portions having been put to Dr. M. D. Shukla (P.W. 12), who was one of the doctors, who conducted
the post-mortem examination on the dead body of Anita. In this connection, a reference was made
to Bhagwandas v. State of Rajasthan, AIR 1957 SC 589 in which it has been observed as follows :-

"It cannot be said that the opinions of these authors were given in regard of circumstances exactly
similar to those which arose in the case now before us nor is this a satisfactory way of disposing of
the evidence of an expert unless the passages which are sought to discredit his opinion are put to
him. This Court in Sunderlal v. State of M.P., AIR 1954 SC 28(A), disapproved of Judges drawing
conclusions adverse to the accused by relying upon such passages in the absence of their being put
to medical witnesses."

20. It has further been urged that in case of strangulation, it is not necessary that the dribbling of
saliva should always be found or ligature mark should necessarily be present. In the above context,
following observation in Modi's Medical Jurisprudence and Toxicology (Twenty-First Edition) in
Chapter-IX, relating to death from asphyxia at page 190, may be made, wherein it has been stated
that the presence of ligature mark depends on the nature and position of the ligature used, and the
time of suspension of the body after death. If the ligature of soft and the body be cut down
immediately after the death, there may be no mark.

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

21. Now, adverting to the statement of Dr. Dinesh Kumar Pathak (P.W. 2), it would appear that
when he reached the house of the accused persons, he had found the body of deceased Anita warm.
This clearly establishes that the death of Anita had just taken place, and, therefore, since in the case
of hanging, the death is instantaneous, the body must not have remained suspended for a long time.
It also appears that 'Dupatta' was used for hanging. Thus, the ligature was soft. In the
circumstances, absence of ligature mark would not rule out the possibility that Anita died of
asphyxia consequent to hanging.

22. Similarly, so far as dribbling of saliva is concerned, it is true that the post-mortem report (Ex.
P/10) and the statement of Dr. M. D. Shukla (P.W. 12) does not disclose any finding regarding
dribbling of saliva. However, it may be noticed that the body of Anita was removed immediately
after the incident by the accused/appellant and she was laid on the bed and as Dr. Dinesh Kumar
Pathak (P.W. 2) has admitted that co-accused Geeta Devi, the mother-in-law of the deceased was
sprinkling water on her face and was fanning her. Clearly, even if there was dribbling of saliva, it
must have been wiped away. Therefore, during the post-mortem examination, which took place after
two days of the death, if dribbling of saliva was not found, it would not indicate that there was no
dribbling of saliva. Since the dead body of Anita was not seen in its original condition while hanging,
and post-mortem examination having taken place after considerable period after the death, signs of
dribbling of saliva could not have been present and seen at the time of post-mortem.

23. Moreover, it does not appear from the text books of Modi and Taylor on Medical Jurisprudence
that dribbling of saliva would conclusively establish that it was a case of strangulation or hanging.
Obviously, the dribbling would take place if the body remained hanging for a considerable period,
which was not so in the instant case.

24. It may also be noticed that the Investigating Officer (P.W. 16) has admitted that hanging could
take place from the bolt of the almirah. The learned trial Court has also expressed its doubt
regarding the defence of the appellant that he opened the door of the room where the incident took
place by pushing it. However, in this regard also Investigating Officer, P. K. Singh (P.W. 16) and
Tikaram Rai (P.W. 5) have categorically admitted that the bolt of the room fell down, if the door was
pushed. Therefore, the trial Court was not justified in discrediting the above statement and the
defence of the appellant in this regard.

25. Now other circumstances in the case may be considered. It may be noticed that the appellant
and his father, co-accused, Dwarika Prasad, called Dr. Gautam (P.W. 1) and Dr. Pathak (P.W. 2)
immediately after the incident, as would appear from the statement of the said witnesses. This is a
very strong circumstance indicating that the appellant or the co-accused had not strangulated Anita,
otherwise, they would not have called the doctors immediately after the incident.

26. Again, there was no motive for the accused/appellant or for that matter, the other co-accused to
cause her death, soon after the marriage of the deceased, without there being any reason therefor.
As already mentioned, there was no demand of dowry, etc. by the accused persons and the family of
the appellants was entirely satisfied with the marriage arrangements, as would be indicated from the
letters written by the father of the deceased, filed on record by the accused/appellant.

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

27. In the foregoing circumstances, it appears more probable that the deceased committed suicide.
Therefore, even if other view may be possible, viz., that it was a case of homicide, still the view,
which is favourable to the appellant shall have to be accepted, as laid down in Sharad Birdhichand
Sarda 's case (supra).

28. It is settled position that mere suspicion, however, strong cannot form the basis of conviction.
Reference may be made to the case of Parminder Kaur's case (supra) in this connection. Similarly, in
Kaliram v. State of Himachal Pradesh, AIR 1973 SC 2773 it has been observed in the above context
that :-

"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 wherein the guilt of the accused is sought to
be established by circumstantial evidence. Rule has accordingly been laid down that unless the
evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is
inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of
the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding
the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding the
benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or
fanciful considerations."

29. Moreover, since there is a reasonable explanation by the appellant regarding the circumstances
in which death of Anita occurred, which is even supported by prosecution evidence, he is entitled to
benefit of doubt. It has been observed in the case of Raja Khima v. State of Saurashtra, AIR 1956 SC
217, that :

"There are two important factors in every criminal trial that weigh heavily in favour of an accused
person; one is that the accused is entitled to the benefit of every reasonable doubt and the other, an
off-shoot of the same principle, that when an accused person offers a reasonable explanation of his
conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless
the circumstances indicate that they are false."

30. Therefore, the circumstances, that there was no motive for the appellant to commit the murder
of his wife, Anita and he rescued her and supported her hanging body and immediately called first
his father and thereafter Dr. Dinesh Kumar Pathak (P.W. 2) and Dr. K. K. Gautam (P.W. 1), thus
seeking medical assistance and the failure of the team of six doctors to conclusively opine regarding
the cause of asphyxia, which could be on account of the hanging also, would lead to a finding of
innocence of the appellant. In the circumstances the learned trial Court was not justified in taking
the view that the death of Anita was on account of strangulation by the appellant. The learned trial
Court obviously fell into error in recording a finding of guilt against the appellant and convicting
him Under Section 302 of the Indian Penal Code for committing murder of his wife, deceased Anita.

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 Sanjay Dwarka Rai vs State Of M.P. on 20 March, 1997

31. The appeal, therefore, deserves to be allowed and is hereby allowed. The conviction and sentence
imposed on the accused/appellant by the trial Court are set aside and he is acquitted of the charges
for offences punishable Under Sections 302 and 201 of the Indian Penal Code and is ordered to be
set at liberty forthwith, if not required to be detained in any other case.

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