# MAHABIR MANDAL AND OTHERS v. STATE.OF BIHAR

- **Citation:** [1972] 3 S.C.R. 639
- **Court:** Supreme Court of India
- **Decided:** 1972-03-01
- **Case number:** Cr. A. No. 97 of 1969
- **Bench:** J.M. Shelat, H. R. Khanna, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahabir-mandal-and-others-v-state-of-bihar-5602
- **Pages:** 21

## Headnote

639
Penni Code-Murder-Death hy poisoning-Tests.
The fi'i:H apoellant c1nd another were conviced under
s. 302
read
11ith ss. 34. 1208 and 201 of the Penal aide and two other accused who
wcte tried along with them were convicted under ss. 120B and 201. On
1hc materials on record, the trial. Court and the High Coun found that
the first appellant was responsible for the death of ·the deceased by
poisoning.
·
·
The doctor who performed thr~ post mortem examination on the dead
body gave ~videnc.e that the death of the deceased might have been a
normal death. He ruled out an asphyxia! death by morphine poisoning,
hccause, according to hin1. there was no indication of any of the followinl?
characteristics which are to be found in C"Jses of such a death: "(a)
Right lung is full of blood and left is empty (b) Lividity of faces ~nd
fingers and nails (c) Congestion of the brain (d) Froth or blood froth
in the trachea (c) Puncti form ecchymosis in the Jungs with congestion
l 1f lungs,..
He v.•as declafcd hostile and anotmr doctor examined by the
rrosecution also stated that he c:ould not form any opiniOn about the
cause of death except tha~ death had resulted due to respiratory failure.
Confirming the conviction of the R'rst appellant for murder arid allowing the appeals in part,
HELD : (_i) The circumstances of the case and the evidence on record
clt!arly point out that the· first appellant was responsible for the death o'i
1 he deC•!ascd and the death was caused by poisoning. When there is no
eye witness of the occurrence, the court should not insist upJn evidence
r1:garding the exact manner i!l which the death was caused.
Poison ca·n
he. administered not only orally b.ut also hypoderm'ically or intervacula1rlv
'' ith the h<lp of a syringe.
In the present case, the conduct of the first
,1μpellan1 in 1•omoving the <l~d body immediately after the death of tho
deceased and the same remaining submerged in water for more than 2.4
hours pr.:!vented promt post mortem examination on the dead body. On tbc
n1aterial, it can be said that there v.1erc some features Jikc the congestion
,,f both the lungs, the kidney. the liver and the spleen of the victim,
\~hich. according to the doctor. Y.'Crc indicative of death by respiratdry
fa.ilur-~ <ind the same cbul<l Ix! caused hy poisoning. The fact that the
hi.fart of the deceased nt the time of post mortem cx:lminaticn \\'as founJ
•o be empty \\IOuld not rule out asphyxia! death as ':l. result of poisoning.
Jn many casc!i of -asphyxia! death both the sides of the heart are found
\(l be full if examined soon after death but after rigor mortis has set in ..
1hc bean is found contracted and ~mpty. The fact that no poison could
he detected in the viscera of the deceased would not n1ilitatc against the
conclusion that the death of the deceased was due to poisoning.
There
.:ire several poisons •Nhich do not leave any characteristic signs as can
h~ seen on post mortem cxan1ination, r653A~Dl~
640
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Taylor's Principles and Pracfice of Mt!dical
jun'sprudenc:e,
T.,J.'e/frh
A
Edit;on, p. 199; Moc/i's Medical Jurisprudence ancl .Toxicology Se~·enteeflth
Edition pp, 125, 447; Legal Medit:i11e, Pathology
and To.<icoloRy,
l>.1•
Gonzales, referred to.
(ii) If circumstantial cvjdencc in the absence of direct proof is so decisive that the Court can unhesitatingly hold that the death was as a result of
administration of posion (though not detected) and that the posion must
II
have been administered by the accused person, then conviction can lY.::
rested on it. Therett.Jre there are no cogent grounds to interfere with the
findings of the two courts that the death. of the deceased was not natural
but homicidal.
(ill) No case has been proved against two of the appellants and th<ir
.conviction has to be set aside.
The rule in section 162 of the Code o[ c
Criminal Procedur~ is not applicable to statements falling within the provisions of clause ( i) of section 3:! of the Evidence Act or to af

## Text

_Characters 0–39,599 of 54,057. This is a partial read: ask again with offset=39599 for what follows._

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MAHABIR MANDAL AND OTHERS
v.
STATE.OF BIHAR
March 1, 1972
[J.M. SHELAT, H. R. KHANNA AND G. K. MITTER', JJ.]
639
Penni Code-Murder-Death hy poisoning-Tests.
The fi'i:H apoellant c1nd another were conviced under
s. 302
read
11ith ss. 34. 1208 and 201 of the Penal aide and two other accused who
wcte tried along with them were convicted under ss. 120B and 201. On
1hc materials on record, the trial. Court and the High Coun found that
the first appellant was responsible for the death of ·the deceased by
poisoning.
·
·
The doctor who performed thr~ post mortem examination on the dead
body gave ~videnc.e that the death of the deceased might have been a
normal death. He ruled out an asphyxia! death by morphine poisoning,
hccause, according to hin1. there was no indication of any of the followinl?
characteristics which are to be found in C"Jses of such a death: "(a)
Right lung is full of blood and left is empty (b) Lividity of faces ~nd
fingers and nails (c) Congestion of the brain (d) Froth or blood froth
in the trachea (c) Puncti form ecchymosis in the Jungs with congestion
l 1f lungs,..
He v.•as declafcd hostile and anotmr doctor examined by the
rrosecution also stated that he c:ould not form any opiniOn about the
cause of death except tha~ death had resulted due to respiratory failure.
Confirming the conviction of the R'rst appellant for murder arid allowing the appeals in part,
HELD : (_i) The circumstances of the case and the evidence on record
clt!arly point out that the· first appellant was responsible for the death o'i
1 he deC•!ascd and the death was caused by poisoning. When there is no
eye witness of the occurrence, the court should not insist upJn evidence
r1:garding the exact manner i!l which the death was caused.
Poison ca·n
he. administered not only orally b.ut also hypoderm'ically or intervacula1rlv
'' ith the h<lp of a syringe.
In the present case, the conduct of the first
,1μpellan1 in 1•omoving the <l~d body immediately after the death of tho
deceased and the same remaining submerged in water for more than 2.4
hours pr.:!vented promt post mortem examination on the dead body. On tbc
n1aterial, it can be said that there v.1erc some features Jikc the congestion
,,f both the lungs, the kidney. the liver and the spleen of the victim,
\~hich. according to the doctor. Y.'Crc indicative of death by respiratdry
fa.ilur-~ <ind the same cbul<l Ix! caused hy poisoning. The fact that the
hi.fart of the deceased nt the time of post mortem cx:lminaticn \\'as founJ
•o be empty \\IOuld not rule out asphyxia! death as ':l. result of poisoning.
Jn many casc!i of -asphyxia! death both the sides of the heart are found
\(l be full if examined soon after death but after rigor mortis has set in ..
1hc bean is found contracted and ~mpty. The fact that no poison could
he detected in the viscera of the deceased would not n1ilitatc against the
conclusion that the death of the deceased was due to poisoning.
There
.:ire several poisons •Nhich do not leave any characteristic signs as can
h~ seen on post mortem cxan1ination, r653A~Dl~
640
SUPREME COURT REPORTS
[1972] 3 S.C.R.
Taylor's Principles and Pracfice of Mt!dical
jun'sprudenc:e,
T.,J.'e/frh
A
Edit;on, p. 199; Moc/i's Medical Jurisprudence ancl .Toxicology Se~·enteeflth
Edition pp, 125, 447; Legal Medit:i11e, Pathology
and To.<icoloRy,
l>.1•
Gonzales, referred to.
(ii) If circumstantial cvjdencc in the absence of direct proof is so decisive that the Court can unhesitatingly hold that the death was as a result of
administration of posion (though not detected) and that the posion must
II
have been administered by the accused person, then conviction can lY.::
rested on it. Therett.Jre there are no cogent grounds to interfere with the
findings of the two courts that the death. of the deceased was not natural
but homicidal.
(ill) No case has been proved against two of the appellants and th<ir
.conviction has to be set aside.
The rule in section 162 of the Code o[ c
Criminal Procedur~ is not applicable to statements falling within the provisions of clause ( i) of section 3:! of the Evidence Act or to affect the
provisions of section 27 of that Act.
But there is nothing in the present
cai;e to show that statements made by the two appellants to the police,
on whicJi the p.ros~cution ti~licd, resulted in the discovery of any incriminating material as may make them admissible under section 27 of
the
Evidence Act.
As such the aforesaid st':ltements must be excluded from
consiOOration.
D
Anant Chintaman Lagu v. The Srate of BomQay, fl960l 2 S.C:R, 460
and State of M.P. v. Rc.mkrishna Ganapaiia Limsey 4' Ors., A.LR. 1954
S.C. 2, referred to.
CRIMINAL APPELLATE JURISDICTION: Cr. A. No. 97 of 1969.
Appeal by Special Leave from the Judgment and Order dated
the 31st January, 1969 of the Patna High Court in Criminal Appeal
No. 254 of 1966.
,
A. S. R. Chari and D. Goburdhun, for the appellants.
R. C. Prasad, for the respondent.
The Judgment ·of the Court was delivered by
Khanna, J. Mahabir .Mandal (58),
Dasrath Mandal (241.
Kasim Ansari (30), Mahadeo Sah (60) and Kedar Nath Upadhya
(28) were tried in the court of Additional Sessions Judge Monghyr.
The learned Additional Sessions Judge acquitted Kedar Nath
Upadhya. Mahabir and Dasrath were .convicted under section 302
read with section 34, I 20B and 201 Indian Penal .Code. For the
offence under section 302 read with section 34 Indian Penal Code.
each of those two accused was sentenced to undergo imprisonment
for life. while for the offence under section 201 Indian Penal Code.
each of them was sentenced to undergo rigorous imprisonment for
a period of four years. No separute sentence was awarded for the
olTencc under section 1208 Indian Penal Code.
The sentences
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MAHABIR v. STATE (Khanna, /.)
641
a warded to each of the two accused were ordered to run concur·
rently. 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 tlie offence under section 120R
Indian Penal Code to Mahadeo and Kasini. The appeal filed by
Mallabir, Dasrath, Kasim and
Mahadeo was dismissed by the
Patna High Court.
The four convicted accused have now come
up 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.
Dasraih was_studying in the final year in Medical College, Dharbhanga at the time of occurrence an<i 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.
Indim Devi deceased (18) was the wife of Dasrath accused and
daughter of Baijnath Manda! (PW 2) of Surajgarh ai a distance of
30 miles from Jamalpur. Indira was aged about 13 years at the
time of. her marriage and continued to stay after the marriage at
her father's ho.use for- about five years. The reasoris for the delay
in the performance ,of Muragawan (second marriagp) ceremony.
after which a girl goes to her husband's house, acoording to the
prosecution_ case, was that Mahabir accused demanded
about
Rs. 2;500 as Dan Dahej from Bai_inath PW.
The amount was.
however, not paid by Baijnath. Letter dated March 29, 1962 wus
then received by Baijnath from Dasrath accused wherein Dasrath
reminded Bai_inath of his promise to pay Rs. 2,500 to Dasrath so
that Dasrath might obtain admission in Calcutta National Medical
College for the purpose of his further education.
Muragawan
cremony of Indira was performed in April 1962 and Indira went
to the house of her hu_sband and his father in Jamalpur. A few
months after that, in the month of Bhadon: 1962, Baijnath tooJ..
Indira to his ho11se after reoeipt of a letter for that puriiose from
Dasrath accused. . A few weeks thereafter Indira was taken bv
Mahabir accused to his house.
After Indira had stayed at the
house of her father-in-law for some time, Mahabir accused levelled
allegations against Indira that she was having illicit intimacy with
His second son Rajendra. ,Mahabir also sent a letter to Baijnath
to take Indira to his house in Surajgarh. Indira was accordinglV
taken in the month of December 1962 to Baijnath's house. Mahabfr
after that expressed his reluctance to take back Indira to his house.
In May 1963 the Tilak ceremony of·.Mahabir's d<iughter as well as
the marriage of Mahabir's youngest son Mahendra were to be
performed.
Indira was not invited for these occasions from her
father's house. Baijnath then took Indira and left her at the house·
'642
SUPREME COURT REP.ORTS
[1972] 3 s.c.R
oQf Mahabir. Mahabir and Dasrath accused did not like this act
of ".Baijnalh. in bringing Indira and leavin!I her at their house.
q.i June·?, '1963 Mahabir wrote a letter to Baijnath wherein ~e
complained that some people had set fire to t:he house of Mahabir
·qn the occasion of the marriage at the instance of Baijnath.
The case of the prosecution further is that in August 1963
Mahabir accused went to Calcutta and met Bhai Lal Manda! (PW
18), who is a cousin and partner in hotel business of Baijnath PW .
. and asked Bhai Lal to request Baijnath to take his daughter Indira
from Mahabir's house, becau~ Indira was having illicit intimacy
with her.husband's you!lger brother who was an engineering student.
Mahabir also told Bhai Lal that if Baijnath would not take Indira,
he (Mahabir) would give some fatal in.iection to Indira. Blfai Lal
thereupon sent letter dated August 8, 1963 to Baijnath in an in-
·sured cover. Referring to the talk with Mahabir, Bhalla! stated
in that letter : '
''In the end, Doctor Babu told us that now he would
take his action v~ry 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 a!SQ 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 abouti it and
will depart from my house for ever. He was saying that
he would take that action within a month."
· Indira died in the house of Mahabir accused in Mohalla Naya11;aon in Jamalimr on the night of September 17, 1963. Mahadco
accused earlier on that evening had been fold by Mahabir accused
to sleep at the latter's house for the night. At about 1.30 a.m. or
2 a.m: on that night, . Mahabir accused, who is known as Doctor
Sahib, awakened Mahadeo as well as Kasirn and Gobind, another
servant of Mahabir.
Mahadeo then brought a taxi driven by
Kedar Nath Upadhya accused. Mahadeo went with Mahabir accused inside the house and saw the dead body of Indira lying on
a cot. No one else was present in the house. The mouth of Indira
was . open and there were no apparent injuries on her person.
Mahabir and Mahadeo accused then picked up the dead body and
brought it outside the house.
Gobind was also asked to assist
in the carrying of the dead body. The dea4 body was then placed
in the taxi: on the back seat. Gobind and Mahadeo sat below the
seat by the side of the dead body, while Mahabir' and KasiJn accused sat oli the front seat along with the driver. A cement bag
with bricks was placed in the boot of the taxi. The dead body was
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MAHABIR v. STATE (Khanna, J.)
643
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then taken to Kamarganj, Ghat on the bank of Ganges at a distance of 21 miles from· J amalpur. A'.t the Ghat the bag filled with
bricks was tied round the waist of Indira's dead body. Mahadeo
and Gobind took the dead ·body into the water of the Ganges and
threw it there in chest-deep water. Mahabir and others then went
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back to J amalpur and reached there at 5 a.m.
Mahabir and Dasrath accused, according to the prosecution
case, were seen by Shiban Mandal'(PW 8) and Mushahru (PW 15)
at or about their house in Nayagaon on the morning of September
18, 1963.
Head Constable. Suleman Khan (PW 6) was during tlhe days
C of the occurrence posted at police post Nayagaon. On the morning
of·September 18, 1963 when he wen~ to the tea stall for taking tea.
lie heard from some ~rsons about the death of Indira and the
removal of her dead body at night. The Head Constable gave this
information at 11 am. to Sul>,lnspector Kishori Lal (PW 21) at
Jamalpur police station. The Sub Inspector made an entry abo•Jt
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the information in the station diary.
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Sub Inspector Kishori Lal then went to the house of Mahabir
and found the door closed. There was no response to the knocking
at the door. .Kasim and Mahadeo accused were,then sent for and
were interrogated.
In the meanwhile, on the morning of Septembjll" 18, 1963, it
is stated, Baijn!lth PW sent his younger brother Jagdish (PW 9 l
to Monghyr to make some purchases. Baijnath also asked Jagdish
to go to Nayagaon and meet Indira. fagdish reached Nayagaon at
about 8 .a.m. In Nayagaon Jagdish came to know from his relative
Sita Devi that Indira. had died during the previous night and her
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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.
G the house of Mahabir accused at about 3.30 p.m. on September
18, 1963. Mahabir and Dasrath accused were not found Ui 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 homeooathic medicine on which words "Mere sd." were
written and two empty ampules with words "distilled water fo1
H
injection"' 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 18,
1963 ASI Birbhadra Singh went with Mahadeo accused to a place
644
SUPREME COURT REPORTS
[1972] 3 S.C.R.
called Chandi As than on the bank of river Ganges and spread a
net in the river, but the dead body of Indira was not found there.
The police party then returned tp the police station. There was
further interrogation of Mahadeo and ~asim accused. Early 011
the morning of September 19, 1963 at about 5 a.m. ASI Birbhadra
Singh accompanied by Mahadeo and Kasim ·accused went to Kamar-
!!anj Ghat. A place was then pointed by Mahadeo accused. From
ihai place Mahadeo a~cused brought out of tihe water the dead
body of Indira. A bag full of bricks was found tied to the waist
of the dead body. ASI Birbhadra Singh then prepared the inquest
report and took into possession ,the·bag·filled with bricks.
Post mortem exan1_ination on the dead body of Indira was performed by Dr. Hari ~hanker Prasad (PW 21) on September 19.
J 963 at 4.30 a.m. at. Sadar Hosp.ital Monghyr. The doctor found
greenish discolouration over fuce and abdomen and an abrasion
2! x l" on left cheek.
According to the doctor, Indira had died
within 36 to 48 hours before the post mortem examination. There
wrt~ no mark of ligature or wound on !he neck.
The. skull. and
\t'rtebrae were found t<l be normal. Right lung and left lung were
found congested.
Heart wa> nonnal and empty.
Liver,' spleen
:md kidney were "normally congested'".
Hladder was normal and
~mpty. Viscera were preserved and sent to the Chemical Examiner.
According to the report of the Chemical Examiner. nei poison
:ould be detected in the viscera of Indira.
Confessional statement of Mahadeo accused was got recorded
from Shri B. M. Rastogi magistrate on September 21, 1963. Ac-
;ording to that statement, Mahadeo along with Mahabir and Kasim
accused as well as Gobind had taken the dead body of Indira from
Ylahabir's house to thebank of Ganges and thrown it in the river
water after tying the bag full of bricks to the dead body.
Mahabir, Dasrath and Kedar Nath accused absconded after
this occurrence.
Mahabir and Dasrath accused surrendered in
.:oun on September 30, 1969. Kedar accused too was arrested .
.\ttempt was also made to arrest: Gobind but he was found to be
"hsconding.
It is also aUeged by the prosecution that Dasrath accused who
was in the Darbhanga Medical College h.!istel was found absent
from the hostel during, the days fronJ Sept~mber 14 to September
i9, 1963.
Mahabir accused at the trial gave the following version of tlte
oc-:urrence :
"On 17-9-63 at 8 p.m,. she (Indira) died. About H
months before it, she was
seriously suffering from
stomach trouble and. there was no hope for her life.
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MAHABIR v. STATE (Khanna, J.)
645
Baijnath lived at _my house for four days and attended
her. Letter (Ex\. B/1) is proof thereof. Four days before 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 conditon. 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 to!<! that she was not feeling well. Then
I began to feel her pulse. All of a sudd~n she had convulsion and she died within 4 seconds. I could not understand 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, he 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 I a.m. Jitan Manda!, Thakur Manda! and Mahadeo went with Mahabir when the
dead body was p11t in .the riyer. Mahabir further stated :
;•I do not .know Gobind. . After disposal of the dead
body, we came back to our house between 12 O'clock
and 1 O'clock in the night, Mahadeo put the bag full of
bricks on the taxi. It is our custom either to burn or
drown the dead body, but specially younz girls are cent
per cent drowned _because while burning, tlie clothes are
·burnt and the dead body ~ecomes naked. Hence after
putting fire in the mouth of the dead body of a young
girl the same ii ~erally drowned. For drowning the
dead body some heavy burden is tied, so that the dead
body might not float, and nobody might see it and dog
or jackal might not eat."
·
Mahabir denied having met Bhai Lal ln Calcutta and having told
him that he (Mahabir) would give a fatal injection to Indira. The
other allegations of the prosecution were a!so denied by Mahabir.
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He, however, admitted having written the letters produced by the
prosecution.
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Dasrath accused in his statement under section 342 of the
Code of Crimina! Procedure stated that he was at Darbhanga
during the. days of the present occurrence and was staying at the
house of a close relative, Shri Ra!ll Lakhan Bhagat Advocate, because the eldest son of Shri Bhagat was suffering from typhoid
and there was no other male member to attend upon him. The
plea of Kasim accused was denial simpliciter.
l 3-L1031 Sup.CTI''
646
SUPREME COURT REPORTS
[1972] 3 s.c.R.
Mahadeo accused in the course or his statement under section
342 of the Code of Criminal Procedure stated that Indira died at
about 8 p.m. and later on that night, Mahadeo was awakened by
Mahabir accused. Mahadeo added :
. '"At 8 O'clock in the night after the death of Indira,
Dr. Saheb told that Thakur should prepare CHACHRI
and that he was going to bring KAFAN. Ladies were
weeping inside the house.
Oobind was not there. It
was rainy season. At the instance of Dr. Saheb, Thakur
and myself kept bricks in a gunny bag. Dr. Saheb wen~
.to ask 10 or 15
persons to go with. the dead body.
When he came after saying to them, it began to rain.
At the instance of other persons, Dr. Saheb went to
bring two taxis but only one taxi could be available.
For want of accommodation in the taxi, I, Dr. Saheb,
Thakur and Jitan took the dead body on the taxi and
remaining persons could not go."
Mahadeo admitted having thrown the dead body in the river.
Written statement was also filed on behalf of Mahabir.
The trial Cour\ came to 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 Dasrat'h accused had con·
spired 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 ac.
cordingly convicted and sentenced as above. Kedar accused was
given the benefit of doubt and was acquitted. As regards Mahadeo
and Kasim accused, it was held that though they had .joined in
the disposal of the dead body, they were not partie5 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 Da.srath accused from legal punishment of
murder. Mahadeo and ~asim 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 :
"(I) Appellant Dasrath was not keen to have the
DURAGAMAN ceremony performed even after more
than four years of his marriage and was putting pressure
on Indira's father to pay the promised sum of Rs. 2500/-
to him although in fact there was no such promise from
his father-in-law.
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MAHABIR v. STATE (Khanna, J.)
.(2) · Dasrath had in the meantime come in some sort
df close intimacy with a girl medical student of Kanpur,
named, Madhl!ri Chourasia and was on correspon.dence
with her.
·
(3) Deceased Indira was suspected by Dasrath and
by his father and step-mother of illicit intimacy with
Rajendra when she came in Aswin in 1962 to stay at
Mahabir's place and they decided to abandon. her at
her father'$-!place neV'er to be called back again.
(4) On the asking of Dasr.ath and Mahabir the
father of Indira brought her back to his place in December, 1962.
(5) Indira was not
asked to join her husband's
family on the occasion of the il'ILAK of Mahabir's
daughter and third son Mahendra \in May, 1963.
(6) Baijnath went uninvited with Indira to Nayagaon
on that occasion :,md he was insulted by Mahalfir and
Dasrath; but still Baijnath left Indira there and returned
alone to Surajgarh.
(7) Mahabir immediately wrote a post card (Ext.
l /3) expressing his acute bitterness, disgust and hatred
for Baijnath .al!d his daughter.
( 8) On 7th August, 1963 Mahabir in Calcutta had
talks with Bhailal an uncle of Indira and Mahabir conyeyed to him his idea of injecting Indira to deal\! within
a month if she was not removed by her father from
his place.
F
(9) Dirty allegations were rnade against he.r characG
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ter and she was described by Mahabir before Bhailal as
cobra.
( 10) Bhailal immediately conveyed to Bai.inath the
gist of the conversation he had with Mahabir by letter
Ext. 1/4 by dated 8-8-1963.
( 11) Mahabir on his own admission before Bhailal
was already giving injections to Indira to relieve her of
some stomach pain.
(12) Su,dden]y Indira died on the night of 17-9-1963.
(13) No relation or neighbour at Nayagaon came to
know of her death on that evening.
(14) The father of the deceased p:irl was not informed
about the death although Sura.jgarh was not very far
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SUPREME COURT REPORTS
[1972] 3 S.C.R.
and there was undqe hot haste in disposing of the body
on the very night of her death.
(15) The dead body was stealthily carried away by
Mahabir and his three servants including Qasim Ansari
on a taxi at dead of night and was sunk unceremoniously
in Kamarganj Ghat 21 miles away although the nearer
burning ghat or bank of the Ganges was at Lal Darwaza
or Chandi As than 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
.T amalpur 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 su_bsequent .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 norma_l and it excluded the possibility of natural death due 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 and his father Mahabir surrendered
in court.
(22) The plea of alibi of Dasrath remained unsubstantiated."
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In the result, the conviction of the accused-appellants was upheld
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and their appeal was dismissed.
Jn appeal in this Court Mr. Chari on behalf of the appellants
has argued that the material on record does not establish that
Mahabir accused caused the death of Indira deceased.
In any
case, according to the learned counsel, it has not been proved that
H
the death of Indira was homicidal and not natural.
So far as
Dasrath accused is concerned, the submi.,sion made is that there is
no cogent evidence on the record to show that he was present at
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MAHABIR V. STATE (Khanna, J.)
649
his house in J amalpur on the night of occurrence.
As regards
Kasim accused, the counsel contends that he is not proved fo have
taken part in the removal of the dead body of Indira from the
house of Mahabir. In respect of Mahadeo, the argument is that
he did not know that Indira had been murdered. The above contentions have been controverted. by Mr. Prasad on behalf of the
respondent State.
We have heard the arguments at length and
shall now proceed to examine as to whether the prosecution has
been able to establish the charge against the accused and if so,
against which of them.
We may first take the case of Mahabir accused. It is the case
of the prosecution that Mahabir had an aversion for Indira deceased and suspected her of illicit intimacy with his second son
Rajendra.
Indira was consequently sent to her father's house.
The above facts are proved by the evidence of Baijnath (P\Y 2)
. and are corroboral'cd by letter dated July 6, 1962 sent by Dasrath
accused to Baijnath PW. The evidence of Baijnath PW further
shows that after Indira had been brought to his house in December
1962, Baijnath made m;my efforts to send Indira to the house of
Mahabir, but Mahabir declined t'o keep her in his house. ,In May
1963 the1marriage of Mahandra and 'rilak ceremony Qf Mahabir's
eldest daughter were to be performed. Mahabir did not send for
Indira on the occasion of the above Tilak ceremony. Baijnath on
coming to know of the Tilak ceremony personally took Indira with
him to Mahabir's house.
Mahabir resented the act of--Baijnath
in bringing Indira to hifo house on the above occasion and made no
secret of his resentment.
Baijnath all the same left Indira at
Mahabir's house under the belief that the anger of Mahabir would
subside. The fact that Mahabir became angry because of Indira
having been brought to his house by l:lajjnath 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 t.o 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 Baij1Jath in the course of which Mahabir stated:
"So for your daughter is living peacefully but you,
who have kept your daughter (here) sccrcfly have don~
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 Manda! are like the TAT! 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.
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SUPREME COURT REPORTS
(1972] 3 S.C.R.
Hence you1should come as soon as you receive the letter
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and have a face to face talk~ Your daughter can live or
go only after settlemept made in the talk.
You should
not hesitlate in coming (here) I shall not quarrel. Whatever action will have to be taken, will be taken with
brain. If you do not come, its result will be bad."
a
The writing of the abo.ve letter has been admitted by Mahabir in
his statement under sect.ion 342 of the Code of Criminal Procedure.
The letter shows that Mahabir was not prepared to keep
Indira at his house unless some amends were made by her father.
The evidence of Bhai ·Lal (PW 18), who is a cousiri of Baijnath
C
PW and runs hotel business, shows I.hat on August 7, 1963 Maha·
bir went to the witness in Calcutta and told the witness to request
Baijnath to take his daughter from the house of Mahabir as Mahabir
did not like to keep her in his house. Mahabir also added at that
time that Baijnath's daughter was having iJlicit intimacy with the
other son of Mahabir and this would create complication in the
family when the sons of Mahabir came during· vacation to the D
house. Mahabir even went to the extent of describing the daughter
of Baijnat;h as a cobra in the house. According further to Bhai
Lal, Mahabir held out a threat while leaving that if Baijnath did
not agree to take back his daughter, he would give some fatal in·
jection to Indira. On the following day Bhai Lal sent a letter
nanating the above facts ro Baijnath. As some money was also
being sent along with tha't letter by Bhai Lal to Baijnath, the letter E
and the inoney were sent in an insured cover. The evidence of
Bhai Lal in this respect is corroborated by that of Baijnath PW
to whom the letter was sent.
Baijath also referred to the above
threat of Mahabir conveyed through Bhaila\ in the first information report.
Both the trial court and the High Court accepted
the prosecution evidence in this respect and nothing has been urged F
in !his Court as may justify· interference with the above appraisement of evidence ..
It is a oommori case of the prosecution and the defence that
Indira died suddenly in Mahabir's house in his presence on the
night between 5eptember 17 and September 18, 1963. The eviG
dence of Baijnath shows that no intimation about the death of
Indira was sent to him. Mahabir accused Jailer on that night arranged a taxi and with the help of Mahadeo and others placed the
dead body in the taxi. The dead body was thereafter taken in that
taxi by Mahabir to Kamarganj Ghat at a distance of 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
H
into chest-deep water Qf. the Gagges after the· bag full of bricks
had been tied to the waist. The above facts are also not disputed
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MAHABIR v. STATE (Khanna, J.)
651
by Mahabir. According to him, they took the dead body at about
1 O p.m. and after the body was thrown into the Ganges they re·
turned 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 tra~ed till he surrendered
himself in court in September 30, 1963.
The dead body of Indira could not be recovered on Septe111ber
18, i 963 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 pn the dead body of Indira .deceased
was performed by Dr. Bari Shanker Prasad. There was greenish
discolouration over the face and abdomen and an ante morte11
abrasion 11 as found on the left cheek.
Eyes were protruding anci
corneas were hazy. Decomposition had started, and according to
the doctor, the time between the death and pos( mortem examination was 36 to 48 hours .. Both the lungs were found congested.
Heart, according to the doctor, was normal and empty, while liver,
spleen and kidney were "normal congested ...
The above circumstances, in our opinion. clearly point to the
conclusion that Mahabir accused was responsible- for the death of
Indira. lt is no. doubt true that there is no ocular evidence in this
case regarding the commission of the crime but the chain of different circumstances are consistent only with the hypothesis of the
guilt of Mahabir. Mahabir was no~ only inimically disposed to•
wards Indira, he had also held out a threat that if she was not
taken from his house he would administer an injection to her as a
rcs:.:lt cf v.'~_\C'h she v10:11d d:·:.
Th::: ccr:du~t o~ ~~luhcbir ~[l.:r the
death of Indira at a time when according ~ him, he was feeling
her pulse speaks volumes of his guilty conscience. Had Indira's
death been natural and not the result of foul-play, there was no
reason as to why Mahabir should not have immediately informed
her father of her death.
According to Mahabir, he sent a post
card to lndira·s father on the following day. No question on that
score, however, was put to Indira's father Baijnath when he came
into witness box.
The act of Mahabir in arranging for a taxi and
taking the dead body of Indira at the dead hour of the night to
Kamarganj Ghqt at a distance of 21 miles clearly indicates his
de;i:·c to surreptitiously remove the dead body and throw it at a
place from which it would not be recovered. It is significant in this
connection to observe that Monghyr is at a distance of only five or
six miles from Jamalpur while Lal Darwaza burning ghat is at a
distance of nine miles from Jamalpur. Both Lal Darwaza burning
ghat and Monghyr are on river bank. The fact that the dead body·
652
SUPREME COURT REPORTS
[1972] 3 S.C.R.
w~ ta!'en to .a much more distant place like Kamarganj Ghat
A ·
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which is 21 mtles away tends to show that Mahabir wanted that
the place where th7 dead body was. t1!rown should not get known
to others.
The ty1!1g of bag contammg bricks to the dead body
bet~ays further anxiety to prev~nt the floating and consequent detect10n of the dead body.
According to the defence version, Dasrath accused. who is
husband of Indira, was not present in Nayagaon and was away to
Darbhanga at the time of the death of Indira. Dasrath even was
itot sent for before the dead body was disposed of. The stealthy
removal of the dead body of Indira at a late hour of the night and
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the undue haste with which the body of Indira was thrown in the c
river at a distance of 21 miles from Nayagaon is a gravely incriminating circumstance and no plausible explanation has been furnished by Mahaoir 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
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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 a~phyxial death or death by morphine poisoning because, according to him, there was no indication
E
of any of the following characteristics which are to be fonnd 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) Punctiform ecchymosis in the lungs with congestion of lungs."
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The prosecution also examined Dr. Kamleshwar Singh. police
surgeon (PW 24). According to this witness, he perused the post
mortem report and the Chemical Examiner's report. The witness
added : "In my view I cannot form any opinion for the cause of
death except that death had resulted due to respiratory failure.
Asphyxia is the technical term for respiratory failure.. Poisoning
may be one of the causes of respiratory failure". Dr. Kamleshwar
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Singh expressed his agreement with Dr. Prasad regarding the
characteristics of asphyxia) death.
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MAHABIR v. STATE (Khanna, J.)
653
The trial court and the High Court in the light of the evidence
on record, were of the opinion that the death of Indira by morphine
poisoning could not be 1uled out. According to Taylor's Principles
and Practice of Medical Jurisprudence, Vol. II, Twelfth Edition,
page 199, poison can be administered not only orally but also hypodermical!y or intravascularly with the help of a syringe. As there
was no eye witness of the occurrence, the court should not, in our
opinion, insist upon evidence regarding the exact manner in which
the death of Indira was caused. It has to be borne in mind in this
context that Mahabir accused was responsible for the removal of
the dead body immediately after the death of Indira' and the same
remaind submerged in water for more than 24 hours. The above
conduct of Mahabir accused prevented prompt' post mortem examination on the dead body of Indira. On the material it can be
said that there were some features like the congestion of both the
lungs, the kidney, the liver and the spleen of Indira whi9h, according to Dr. Kameshwar Singh, were inflicative of death by respiratory
failure and the same could be caused by poisoning. The fact that
the heart of the deceased at the time of post mortem\examination
was found to be empty would n.ot rule out asphyxia!:, death. as a
result of poisoning.
According to observations on page 125 of
Modi's Medical Jurisprudence and Toxicology, Seventeenth Edition,
in many cases of asphyxia! deaths both the sides of the heart! are
found to be full if examined soon after death but after rigor mortis
has set in. the heart is found contracted and empty. Reference has
been made by Mr. Chari to reportj dated December 23, 1963 of
the Chemical Examiner, according to whom no poison could be
detected in the viscera of Indira deceased. This circumstance would
not, in our opinion, militate against the conclusion that the death
of the deceased was due ro poisoning. There are several poisons,
particularly of the synthetic hypnotics and \egetable 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 4 77 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.