Full Judgement
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' programm
