TMI Blog1972 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... to run concurrently. Mahadeo and Kasim were convicted under sections 120B and 201 Indian Penal Code. For the offence under section 201 Indian Penal Code, each of these two accused was sentenced to undergo rigorous imprisonment for a period of three years. No separate sentence was awarded for the offence under section 120B Indian Penal Code to Mahadeo and Kasim. The appeal filed by Mahabir. Dasrath, Kasim and Mahadeo was dismissed by the Patna High Court. The four convicted accused have now come Lip in appeal to this Court by special leave. Mahabir accused, who was practising as a homeopathic doctor at Jamalpur in district Monghyr, is the father of Dasrath accused. Dasrath was studying in the final year in Medical College, Dharbhanga at the time of occurrence and was having house surgeon's training in that college at the time of the trial. Kasim is stated to be the compounder of Mahabir accused, while Mahadeo accused was employed by Mahabir as a servant to look after Mahabir's field. Indira Devi deceased. (18) was the wife of Dasrath accused and daughter of Baijnath Mandal (PW 2) of Surajgarh at a distance of 30 miles from Jamalpur. Indira was aged about 13 years at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mahabir also told Bhai Lal that if Baijnath would not take Indira, he (Mahabir) would give some fatal injection to Indira. Bhai Lal thereupon sent letter dated August 8, 1963 to Baijnath in an insured cover. Referring to the talk with Mahabir, Bhailal stated in that letter : In the end, Doctor Babu told us that now he would take his action very soon. She was the cobra of his house. He has such an injection in his possession that nothing will be known and she will remain sleeping. At present I give her one injection at an. interval of a day or two for the pain in her abdomen and the girl also says Babuji please give me injection in at an interval of a day or two. The pain of my abdomen remains subsided with the injection. On the same pretext he will give her that injection also that she will not even know about it and will depart from my house for ever. He was saying that lie would take that action within a month. Indira died in the house of Mahabir accused in Mohalla Naya- gaon in Jamalpur on the night of September 17, 1963. Mahadeo accused earlier on that evening had been told by Mahabir accused to sleep at the latter's house for the night. At about 1.30 a.m. or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dish came to know from his relative Sita Devi that Indira had died during the previous night and her dead body had been removed. Jagdish then hired a taxi, went to Surajgarh and informed Baijnath about the death of Indira and the removal of her dead body. Baijnath and Jagdish then came in that taxi to Jamalpur. Baijnath on arrival at Jamalpur lodged report Ex. 18 at police station Jamalpur at 2 p.m. Sub Inspector Kishori Lal, it is further alleged, went again to the house of Mahabir accused at about 3.30 p.m. on September 18, 1963. Mahabir and Dasrath accused were not found in spite of search. Outside the dispensary of Mahabir, the Sub Inspector found lying on a table two empty ampules of coramine, one empty phial of homeopathic medicine on which words Mere sd. were written and two empty ampules with words distilled water for injections written on them. Those articles were seized by the Sub Inspector. Mahadeo and Kasim accused were put under arrest, After the interrogation of Mahadeo accused, on September 1 8, 1963 ASI Birbhadra singh went with Mabadeo accused to a place called Chandi Asthan on the bank of river Ganges and spread a net in the river, but the dead body of Indir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomach trouble and there was no hope for her life. Baijnath lived at my house for four days and attended her. Letter (Ext. B/1) is proof thereof. Four days be-fore her death, she suffered from ordinary Influenza and she was under my treatment. On 17-9-63 in the morning there was remission of her fever. On that date at about 7.45 p.m. I came back to my house, and asked Indira's condition. My wife told me that she was quite well for the whole day and that she was not feeling well for the last 5 to 7 minutes. Thereafter I went inside. On enquiry Indira told that she was not feeling well. Then I began to feel her pulse. All of a sudden she had convulsion and she died within 4 seconds. I could not un- derstand as to what was the cause of her death. I am myself a doctor. There was no necessity of beating drums (spreading news) as to her illness. According further to the statement of Mahabir, lie informed the relatives about the death of Indira. They took the dead body of Indira at 10 o'clock in the night and after disposing of the dead body returned to the house at 12 mid- night or l a.m. Jitan Mandal, Thakur Mandal and Mahadeo went with Mahabir when the dead body was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the conclusion that the possibility of the death of Indira due to morphine injection could not be ruled out. It was held that Mahabir and Dasrath accused had conspired to kill Indira by administering poison, or at any rate, Dasrath accused had connived at the, murder of Indira by Mahabir accused Both of them were further held to have conspired to dispose of the dead body secretly with a view to screen themselves from legal punishment. Mahabir and Dasrath accused were accordingly convicted and sentenced as above. Kedar accused was given the benefit of doubt and was acquitted. As regards Mahadeo and Kasini accused, it was held that though they had joined in the disposal of the dead body, they were not parties to the conspiracy to murder Indira.' These two accused were, however, found to have conspired to dispose of Indira's dead body with a view to screen Mahabir and Dasratli accused from legal punishment of murder. Mahadeo and Kasim accused were accordingly convicted for offences under sections 120B and 201 Indian Penal Code. On appeal the High Court found that the following facts had been proved: (1) Appellant Dasrath was not keen to have the DURAGAMAN ceremony pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anj Ghat 21 miles away although the nearer burning ghat or bank of the Ganges was at Lal Darwaza ox Chandi Asthan at Monghyr, only five to six miles away from Jamalpur. (16) The body was not cremated according to custom. (17) Rumour about surreptitious disposal of the dead body was reported at Jamalpur Police Station and enquity was at once started by the thana officer on the morning of 18-9-1963 and Mahadeo and Quasim Ansari made discrepant statements about the, death and disposal of the dead body on interrogation. (18) Mahabir and also Dasrath (who was seen at Jamalpur on the morning of 18-9-1963) absconded and remained traceless till 30-9- 1963. (19) Mahadeo misled the police in searching out the dead body in the evening at Chandi Asthan on 18-9-1963 and later on a subsequent clue furnished by him the police party came to Kamarganj Ghat and recovered the dead body from the river bed. (20) Upon post mortem examination heart was found empty and normal and it excluded the possibility of natural deathdue to- syncope or vagal inhibition. (21) Dasrath was absent from his hostel at Darbhanga from 14-9-1963 and again from 23-9- 1963 till 30-9-1963 when he a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subside. The fact that Mahabir became angry because of Indira having been brought to his house by Baijnath on the occasion of the above Tilak ceremony is admitted by Mahabir also in his statement under section 342 of the Code of Criminal Procedure. After the Tilak ceremony of Mahabir's daughter, Indira continued to stay at the house of Mahabir. Mahabir, however, did not feel happy over this. Mahabir also suspected that some people had set fire to his house on the occasion of the marriage of his daughter at the instigation of Baijnath. On June 7, 1963 Mahabir wrote a letter to Baijnath in the course of which Mahabir stated So far your daughter is living peacefully but you, who have kept your daughter (here) secretly have done a great harm. You who have done this act in collusion with my enemies and you have thought that it would be for your good. Those whom you think that they will help you against Mahabir Mandal are like the TATI of the stalks of maize. You should know that there is man of brain on this side also to burn the action which you take. Hence you should come as soon as you receive the letter and have a face to face talk. Your daughter can live or go only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 21 miles from the house of Mahabir in Jamalpur. A bag full of bricks was also carried in the taxi. The dead body of Indira was then thrown into chest- deep water of the Ganges after the bag full of bricks had been tied to the waist. The above facts are also not disputed by Mahabir. According to him, they took the dead body at about 10 p.m. and after the body was thrown into the Ganges they returned at about mid-night or 1 a.m. After report had been lodged by Baijnath with the police on the following day, that, is, September 18, 1963 Mahabir accused was found to be absconding and was not traced till he surrendered himself in court in September 30, 1963. The dead body of Indira could not be recovered on September 18, 1963 and was recovered only on the morning of September 19, 1963 after the particular spot at Kamarganj Ghat had been pointed by Mahadeo accused. Post mortem examination on the dead body of Indira deceased was performed by Dr. Hari Shanker Prasad. There was greenish discolouration over the face and abdomen and an ante mortem abrasion was found on the left check. Eyes were protruding and corneas were hazy. Decomposition had started, and according to the doctor, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the dead body was disposed of. The stealthy removal of the dead body of Indira at a late hour of the night and the undue haste with which the body of Indira was thrown in the river at a distance of 21 miles from Nayagaon is a gravely incriminating circumstance and no plausible explanation has been furnished by Mahabir for this abnormal conduct. As regards the contention that the death of Indira was natural and not homicidal, we have already mentioned above that both her lungs were found to be congested. Heart was normal and. empty. Dr. Prasad (PW 21), who performed the post mortem examination on the dead body, was declared hostile on the request of the public prosecutor. In answer to a further question, Dr. Prasad stated that the death of Indira might have been a normal death Dr. Prasad ruled out an asphyxial death or death by morphine poisoning because, according to him, there was no indication of any of the following characteristics which are to be found in the case of such a death : (a) Right lung is full of blood and left is empty. (b) Lividity of faces, fingers and nails. (c) Congestion of the brain. (d) Froth or blood froth in the trachea, (e) Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of Indira deceased. This circumstance would not, in our opinion, militate against the conclusion that the death of the deceased was due to poisoning. There are several poisons, particularly of the synthetic hypnotics and vegetable alkaloids groups, which do not leave any characteristic signs as can be noticed on post mortem examination. We may in this context refer to the following observations on page 477 of the above mentioned book by Modi: It is quite possible that a person may die from the effects of a poison, and yet none may be found in the body after death, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other. channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glucosides, may, by oxidation during life or by putrefacti on after death, be split up into other substances which have nocharacteristic reactions sufficient for their identification. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of poison has taken long and to hers have had an opportunity of watching its effect. Where, however, the poison is administered in secrecy and the victim is rendered unconscious effectively, there is nothing to show how the deterioration in the, condition of the victim took- place and if not poison but disease is suspected, the diagnosis of poisoning may be rendered difficult. Reliance in the above context was placed in the cited case on the books on medical jurisprudence by different authors wherein it has been stated that the pathologist's part in the diagnosis of poisoning is secondary and that several poisons particularly of the synthetics hypnotics and vegetable alkalodis groups do not leave any characteristic signs which can be noticed on post mortem. examination. The following dictum was laid down in the case: The cases of this Court which were decided, proceeded upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the. inference that death is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has stated that he was away to Darbhanga during those days. There is no reliable evidence to show that Dasrath was present in the house on the night in question. Reliance has been placed by the prosecution on the testimony of Shiban Mandal (PW 8) and Mushahru Mandal (PW 15) who have deposed that they saw Dasrath reading a book near the dispensary room of his house on the morning of September 18, 1963. Both these witnesses are related to each other. Shiban, did not make any statement to the police till September 22, 1963. The fact that Shiban kept quiet for four days and made statement to the police after four days would show that not much reliance can be placed upon his testimony. Mushahru on his own testimony has been involved in litigation with Mahabir, father of Dasrath. Mahabir also got the house of Mushahru attached in a suit filed against him. As such, it is not safe to rely upon the testimony of Mushahru also. It may be mentioned that, according to the confessional statement of Mahadeo, which was recorded by Shri Rastogi magistrate on September 21, 1963 and upon which reliance was placed by the prosecution, no one was present in the house when Mahabir took Mahadeo insi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any part of his statement, if duly proved, may be used by the accused and with the permission of the court by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act and when any part of such treatement is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. The above rule is, however, not applicable to statements falling within the provisions of clause 1 of section 32 of the Indian Evidence Act or to affect the provisions of section 27 of that Act. It is also well established that the bar of inadmissibility operates not only on statements of witnesses but also on those of the accused [see Narayan Swami v. Emperor, ([1939] P.C. 47)]. Lord Atkin, in that case, while dealing with section 162 of the, Code of Criminal Procedure, observed Then follows the Section in question which is drawn in the same general way relating to any person. That the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number ..... X X X X Extracts X X X X X X X X Extracts X X X X
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