STATE OF U.P.versusRAMESH PRASAD MISRA AND ANR.

                        STATE OF U.P.                                          A
                             v.
                RAMESH PRASAD MISRA AND ANR.

                            AUGUST 13, 1996

           (K. RAMASWAMY AND S.B. MAJMUDAR, JJ.]                               B

      lltdiall Penal Code, 1860: Sectiolls 201, 302 altd 498-A.

       Murder-Dowry death-Accused causillg death of wife by strallgulation
altd then bumillg the body--Motive-Demaltd for dowry-Accused pleadillg C
alibi alld statillg that a strallger committed the crime-Elltire prosecutiolt case
rested on circuntstantial evidenc~Accused not exhibiting nonnal hunian
conduct-Evidence of father and sister of deceased regarding dowry
demaltd-Trial of accused altd his mother-T1ial Cowt coltvictillg accused
under sectioll 302 alld imposing death sentence-Accused also convicted altd
sentenced t1nder sectiolls 201 and 498-A-Mother of accused acqt1itted ultder D
Section 302 but convicted under Sections 201and498-A-High Court acquit-
ting both t/ie accused of all the charges-Appeal preferred by S!ate-Held on
facts accused was guilty of offence under Section 302-But sentence of death
converted into life inip1iso1u11enc-<_:onviction and sentence iniposed on ac-
cused by Trial Court under Sections 201 and 498-A upheld-Acquittal of E
mother of accused in respect of all charges upheld.

      Evidence Ac~ 1872: Sectwns 8 and 32(1) and 113-B.

       Dowry death-Evidence of father and sister of deceased-Held relevant
under Section 8-:lt would raise presumption ullder Section 113-B ill respect   F
of offence under Sectiolt 498-A /PC.

      Hostile witltess-Evidelltiary value of

      Strictures-High Court-Wrong exclusion of admissible and relevant
evideltce-Deprecation of                                                       G
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
884of1996.

     From the Judgment and Order dated 19.7.88 of the Allahabad High
Court in Crl A No. 2108 of 1987.                                               H
                                 631
     632.                    SUPREMECOURTREPORTS (1996)SUPP.4S.C.R.

•A          T .N. Singh and A.S. Pundir for the Appellants.

            M.C. Dingra and, P.K. Jain,
                                    . for' . the Respondents.
                                                           . ,
            The following Order of ,the
                                      .
                                        Court was delivered :

·B          Leave granted.

            We have heard learned counsel on both sides.

            In Sessions Trial No. 78 of 1985 in the Court of the Special Judge
     (E.C. Act), Banda,' the Sessions Judge convicted Ramesh Prasad Misra,
 C · the first respondent under Section 302; Indian Penal Code ('!PC', for short)
     and sentenced him to death. He was also convicted under Section 201, !PC
     and sentenced to undergo rigorous imprisonment (RI) for four years and
     to pay a fine of Rs. 1,000 and in default to undergo simple imprisonment
     for six months. He ·was also convicted under Section 498'A and sentenced
 D · to Undergo twci years; RI and to pay a fme of Rs:· 1,000 and in. default to
     undergo further simple imprisonment for six months. All the sentences
     were directed to run concurrently. Smt. Butta Devi the second responde~t,
     mother 'of the first respondent, was acquitted of the offence under Section
     302 but was convicted under Section 201, IPC and sentenced to undergo
     RI for four years and a fine of .Rs. 1,000 and in default to undergo six
.E month's simple inlprisonment. She also was convicted under Section 498-A
     and sentenced to undergo RI for tWo years and to pay a fine of Rs. 1,000
     and in default to.undergo simple imprisonment for a further period of six
     months. Both the sentences were directed to-run concurrently. 'A Division
   . Bench of Allahabad High Court consisting of B.N. Katju and D.S. Bajpai,
 F · JJ., however, by judgment dated July 21, 1988 in Criminal Appeal no. 2108
     of 1987 acquitted both the respondents of all the charges and also rejected
     the reference for confirmation of death sentence. Thus this appeal by
     special leave.

          · This is one of th'e most horrendotis bed-room murder of a young
 G   married girl, Urmila Devi, of 19 years on the intervening night of Septem-
     ber 26/27, 1985 in Karwi Town in Banda District of Uttar Pradesh. She was
     married to' Ramesh· Pras~d Misr3, aged arou~d 28 ·years," a practising
     advocate at Karwi, on April 25, 1985 and hardly after five months she met
     with cruel death. She was carrying 4 to 6 weeks', pregnancy. It is not in
 H   dispute and cannot be disputed that she died due to asphyxia by strangula-
                           STATE'" RP. MISRA                              633

tion as found by PW-1, autopsy Doctor. A contusion of 9 cm x 3 cm size A
was found across the front of the neck underlying skin, muscle, trachea,
oesophague congested and hyoid bone was fractured, extervasation of
blood in the neck region due to injury of neck vessels. It was also found
that the tongue had protruded out and was bitten by teeth of both jaws.
Blood was coming out from mouth and nose. Both eyes were closed and B
congested and face was also congested. The membranes were conges.ted,
brain base of skull, pleura, larynx, traches, bronchi, both the lungs and
phyranx were found congested. These circumstances clearly indicate force
and pressure put upon her and conclusively establish that the death oc-
curred due to asphyxia by strangulation. Thereafter, the dead body was
burnt and the entire body was burnt except the feet. It would thus be clear C
that the burns were post-mortem. The offence is, therefore, one of murder.
According to the doctor, i'W-1, the death had taken place around 2400
hours of 26th September, 1985. It would be conclusive that the death had
taken place around mid-night of 26/27th September, 1985 in the bed-room
of the first respondent.                                                    D

       The question, therefore, is : whether the first respondent has com-
mitted the murder of his wife? Undoubtedly, the entire prosecution case
rests on circumstantial evidence. It is settled law that it is the duty of the
prc,ecution to establish all the circumstances conclusively to hold that the
respondent alone had committed the offence. Witnesses may be prone to            E
speak, and in this case, material witnesses have spoken falsehood but the
circumstantial evidence will not. It is, therefore, the duty of the court to
carefully scan through the evidence on the anvil of human conduct prob-
abilities and attending circumstances extending all doubts in favour of the
accused. In a case of this type, hardly any direct evidence would forthcome
                                                                                 F
for the prosecution.

       The case of the prosecution is sought to be based on the evidence of
PW-2 and PW-6 - a practising advocate who are, admittedly, the neigh-
bours. In their statement under Section 161 of Criminal Procedure Code,
("Cr. P.C.", for short) they have stated that they heard the quarrel between G
the first respondent and his wife, Urmila Devi and the latter was heard
crying. However, both the witnesses turned hostile to the prosecution.

      The question is : whether the first respondent was present at the time
of death or was away in the village of DW-1, his brother-in- law. It is rather H
    634                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A most unfortunate that these witnesses, one of whom was an advocate,
    having given the statements about the facts within their special knowledge,
    under Section 161 recorded during investigation, have resiled from correct-
    ness of the versions in the statements. They have not given any reason as
    to why the investigation officer could record statements contrary to what
    they had disclosed. It is equally settled law that the evidence of a hostile
B   witness would not be totally rejected if spoken in favour of the prosecution
    or accused, but it can be subjected to close scrutiny and that portion of the
    evidence which is consistent with the case of the prosecution or defence
    may be accepted. One clinching circumstance, viz., that PW-2 and PW-6
    had heard some quarrels in the house of the respondents and the deceased
C   was crying out, is not on record as substantive evidence. PW-2 and PW-6
    had no regard for truth; they fabricated the evidence in their cross-ex-
    amination to help the accused which did not find place in their Section 161
    statements that they had seen one man of whiye complexion and aged
    between 30 to 35 years, going to the house of the deceased on the fateful
D    night and leaving the house at 8.00 a.m. on the next day.

          The first respondent has introduced two theories, viz., some stranger
    had come to his house on the evening of September 26, 1985. He slept in
    the house and leli the house on the next day, i.e., 27th September, 1985, at
    8 a.m. This was spoken of not only in this statement made under Section
E   313, Cr. P.C. by the first respondent but also, as stated above in the
    evidence of PW-2 and PW-6 in their cross-examination. PW-2, Biswas
    Kumar, a neighbour of the respondents and PW-6, Harshvir Singh were
    examined to prove the prosecution case that on the intervening night of
    September 26/27, 1985 they heard quarrels emanating from the house of
F   the accused and the deceased was heard crying; but they turned hostile at
    the trial and were duly declared hostile and were cross-examined. PW-6,
    is none other than a practising advocate and a colleague of the Jst respon-
    dent. Equally, PW-5, Alok Dwivedi is another practising advocate who was
    also examined to prove that the first respondent himself and one Avadh

G
    Vishwa Karma, advocate together had gone from the Court with the written
    report, Ex. KA-3 signed by the first respondent to the police station and
    had given it at the police station, Karwi at about 2.00 p.m. DW-2,
    Bhavendra Kumar Singh, a advocate of 20 year's standing and the senior
                                                                                     -
     of the first respondent was examined to prove the alibi. It is most distress-
     ing to note that practising advocates, PW-6 and DW-2, with a view to
H    exculpate the first respondent from the clutches. of law, have, without any
                                STATE v. R.P. MISRA                       635

      compunction, spoken falsehood and have no regard for truth betraying A
      their duty of being responsible law officers who are expected to uphold
      truth and nothing but truth. DW-2 has spoken falsely that after the first
      respondent got the news of the death of his wife he was often fainting and
      swooning which was not even spoken by the first respondent in his Section
      313 statement. On his own showing, the first respondent had argued bail B
      applications and attended other cases even after he had the news of the
      death of his wife. In those circumstances, the plea of fainting and oc-
      casional unconsciousness is incompatible with stone-hearted Ramesh
      Prasad Misra. He did not exhibit normal human conduct of an innocent
      man, i.e., he should have been shocked to hear the news of the death of
      his young wife, married just five months back and an expectant mother of C
      his child, in his absence, he c.hould have rushed home to find out the cause
      for the death and search out whether crime was for gain etc. and immedi-
      ately swing into action and make the police to investigate into the crime.
      One the other hand, although he had the news at 11 a.m. he went to the
      police station at 2.10 P.M. after finding no escape to further delay the D
      reporting to the police of the crime. This conduct is inconsistent and
      incompatible with normal human behaviour of an innocent man but seems
      to be one of a clever demeaneour. The evidence of DW-2 regarding
      occasional faints and swooning and ulti1nate unconsciousness is a bunch of
      tissues of lies unsavoury to be accepted.
                                                                                E
             The question is : whether this theory of alibi and of a stranger
      commiting crime is true, likely and probable? The deceased was hardly 19
      years old, young teenager who was studying in intermediate standard at
      the time of marriage. PW-2, Chandra Shekhar had five daughters and
      Urmila Devi was third one and being a man of small means, he anxiously F
      married her to the first respondent, spending Rs. 35,000 with fond hope
      that she would have bright married life which ultimately turned out to be
      hell losing her precious life. After the marriage, she was staying with her
      husband and had spent hardly five months and was having 4 to 6 weeks'
      pregnancy. There is no suggestion even of her being of loose character. If

...   the stranger had really come and stayed in the house and committed G
      murder by strangulation, would he have burnt the dead body so as to create
      evidence to alert the neighbour to come and catch him? It would be
      abhorrent to the common sense to believe it. Yet another circumstances to
      disbelieve this theory is that having committed the murder at midnight,
      would he have waited till 8.00 a.m. and left the house after day break so
      as to secure evidence of his presence and of having committed the murder? H
    636                  SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A Under these clinching impossible human conduct, the theory of stranger's
    coming to the house, staying with the deceased during the intervening night
    of 26/27 September, 1985 and of committing her murder is a false one. The
    evidence of PW-2 and PW-6 in this behalf is a figment of imagination,
    emanating from fertile confabulation of 1st respondent, PW-6 and obvious-
    ly of DW-2 and his other colleagues who are all practicing advocates.
B
         Yet another theory set up by the first respondent to prove his alibi
  is that pursuant to a letter dated September 18, 1985 written by his
  brother-in-law, DW-1, resident of Jharimajugaon, a Railway employee
  stating that his sister was unwell and that on its receipt on September 24,
c 1985, he went to see his sister directly from the court on September 25,
  1985 without coming to his house and keeping his briefs, coat in the house.
  He is stated to have kept his coat in a shop. It appears to be a highly
  artificial theory set up by the first respondent. On his own admission of
  DW-1, his wife, viz., the sister of the first respondent had usual fever which
D did not warrant him to go straight from the court to his sister's house
  without coming to his house and informing his wife of his going, without
  keeping his coat and also his record in the house. DW-1 admitted that one
  vaidya was treating her for fever and that fever continued even after the
  first respondent left the house. DW-1 was attending lo his duties going to
E distant place. No prescription of medicine was given. The distance between
   Karwi and his sister's village is 70 K.M. Even assuming that he had gone
   on 25th September, he would have returned on 26th evening. Yet another
   circumstance put forward and which is highly artificial and unbelievable
   and beyond credulity is that he started in the morning on September 27,
   1985 from OW-l's house and directly reached the court, covering a dis-
F tance of 70 kms. by 10 a.m. and he remained in the court upto 11 a.m.
   without going to the house which is situated hardly 1-1/4 kms. from the
   court. It is highly unbelievable and unacceptable. It is also an admitted
   position that he had news of his wife's death in the court at 11 a.m. He did
   not disclose the name of the informer. Along with another two advocates,
G i.e., PW- 5 and another he went to the police station at 2.10 p.m. on
   September 27, 1985 to lodge the written first information report, Ex. KA-3.
   A reading of Ex. KA-3 is quite interesting. He merely mentions that while
   he was in court at 11 a.m. he received the message that his wife had died
   and he· went to the house and after seeing her dead body he went to the
H police station and lodged the report. There is no explanation as to where
                          STATE v. R.P. MISRA                          637

he was moving or what he was doing from 11. a.m. to 2.10 p.m. and why A
he had lodged the report at 2.10 p.m. when he had received the message
of the death of his wife at 11 a.m. He did not even mention that his wife
was having burn injuries. It is now seen that the deceased was first stran-
gulated and done to death and was then burnt. Under these circumstances,
he was clearly not sure of the cause of death of the deceased and so after B
consultation he did not specifically and designedly mention the cause of
the death because he was not sure as to what was the real cause of the
death; in order words, whether it was due to strangulation or burning. If
he were to mention that it was due to burns and if it had turned out to be
false which in fact turned out to be later, it would be used against him.
Obviously, therefore, he had not committed himself to any specific cause
                                                                              c
of the death. If the theory of the stranger's coming and causing the death
of his wife is excluded and his theory that he had gone to his sister's house
and he did not come back to his house till he received the information that
his wife was dead which information. he received at 11 a.m. on September
27, 1985, stands excluded, and for the above obvious reasons, it does get D
excluded; then the necessary conclusion is that he must have been present
in the house. None couW have access to his bed room at mid-night. So he
committed the murder and he wanted to create evidence of screening the
offence of murder by burning her to create an evidence of suicide com-
mitted by the deceased. These false theories set up by the first respondent E
are yet other circumstance to complete the chain to inculpate the first
respondent in the commission of the offence of murder and scratching the
evidence of murder. There is strong evidence of PW-2, father and PW-4,
sister of the deceased, of demand for dowry which furnishes motive to
commit murder.                                                                F

       It is rather most unfortunate that the learned Judges of the High
Court dealt with the matter very casually and did not apply their mind to
the crucial circumstantial evidence in this case. They merely superficially
read the evidence of hostile witnesses PW-2 and PW-6 and held that from
their evidence the presence of the accused in the house was excluded. The G
evidence 0f PW-2 and PW-4, father and sister of the deceased who spoke
about the motive, was excluded on applying Section 32 of the Evidence
Act. It is difficult to appreciate this line of reasoning. Section 32(1) of the
Evidence Act is wide enough to include statements of deceased regarding
circumstances of the transactions which resulted in his death, i.e., the H
    638                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

\   motive behind the criminal act in question. But even if Section 32 does
    not cover such evidence, the evidence of these witnesses can certainly be
    treated to be relevant for deciding whether the accused was guilty of
    offence under Section 498-A of the Indian Penal Code. Thus, even assum-
    ing that Section 32 is inapplicable to the facts of this case as held by the
    learned Judges of the High Court, the narration of the facts of demand for
B   dowry of sofa, motor-cycle etc. and non-supply thereof is piece uf evidence
    to prove motive for committing the offence of murder. Such evidence
    would be relevant and admissible under Section 8 of the Evidence Act. The
    deceased informed these witnesses of the ill treatment meted out to her
    due to her inability to secure articles demanded by Ramesh Prasad Misra.
C   Further, the learned Judges blissfully forgot the presumption under Section
    113-B of the Evidence Act. The learned Judges, therefore, have wrongly
    excluded the relevant and admissible evidence as being inadmissible under
    Section 32 and omitted to consider applicability of Section 113-B. The
    learned Judges have also failed to consider the moot question whether the
D   defence version that the murder of Urmila was committed by SOl!l!< un-
    known person in the bed-room of the deceased on that fateful night, was
    at all probable and acceptable. This part of the case has been totally left
    out of consideration by the learned Judges. If all the circumstances are
    read together, the only inevitable conclusion that could be reached is that
    the first respondent along has committed the offence of the murder of his
E   wife and screened the offence of murder so as to escape from the clutches
    of law. From the evidence on record, however, it is not possible to un-
    hesitatingly connect the mother of the first respondent, viz., the second
    respondent, Bullo Devi to be a privy to the commission of murder or any
    of the other offences and, therefore, the acquittal of the second respondent
F   is upheld but the acquittal of the first respondent is set aside.

          In view of the long passage of time from the date of the commission
    of the offence till date, we are of the view that it is not a case warranting
    restoration of death sentence and confirmation thereof as imposed by the
    learned Session Judge. We place on record our commendation for the
G   earnest effort made by the learned Sessions Judge, S.C. Chaurasia in
    discussing, in fairness, all the material circumstances and connecting the
    offence with the accused No. 1 and giving reasonable benefit of doubt of
    capital sentence to accused No. 2. On the other hand, the learned Judges
    of the High Court betrayed their duty of final court of fact, to sub.iect the
H   ovidcnce to clos~ and critical scrutiny. They either have no knowledge o'
                               STATE v. R.P. MISRA                           639

    the elementary principles of criminal law or adopted causal approach           A
    towards a serious crime like the present one. In either case, miscarriage of
    justice is the inevitable result at their hands in criminal cases.

           Accordingly, we set aside the acquittal of the first respondent in
    respect of all the three charges and restore the conviction of the first
    respondent for an offence of murder under Section 302, !PC. However, the       B
    sentence of death, recorded by the Sessions Judge is converted into RI
    for life. However, the convictions and sentences under Sections 201 and
    498-A l.P.C. are restored and are directed to run concurrently. The acquit-
    tal of the second respondent in .respect of all charges is upheld.

          We request the learned Chief J.ustice of the Allahabad High Court        C
    to bring this judgment to the notice of learned Judges, B.N. Katju and
    Bajpai, JJ. if they have not alre.ady retired with a view to see that the
    learned Judges would be more careful in future in deciding criminal
    matters assigned to them so that miscarriage of justice would not result.
                                                                                   D
          The appeal as against the first respondent is allowed and is dismissed
    as against the second respondent. The bail bonds of the first respondent
    stand cancelled. He should surrender forthwith to serve out the sentence.
    In case he does not surrender himself, the Superintendent of Police, Banda
    District is direct to take him into custody forthwith and report the com-
    pliance to the Registry of this Court. The bail bonds of the second respon-    E
    dent stand discharged.

    T.N.A.                                           Appeal against !st Respdt.
                                                   allowed and Appeal against
•
                                                         !Ind respdt dismissed.




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