# SAWAL DAS v. BIHAR (Beg, /,)

- **Citation:** [1974] 3 S.C.R. 74
- **Court:** Supreme Court of India
- **Decided:** 1974-01-09
- **Bench:** M. H. Beg, P. N. Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sawal-das-v-bihar-beg-6072
- **Pages:** 10

## Headnote

Indian Penal Code (Act 45 of 1860), s. 34 and 302-Circun1sta11tial evicknceAccusedchargedunders. 302/34-When accused1nay be convicted unders.
302,
when the others are acquitted under s. 302/34-0./Jence under s. 201-Sentence.
Evidence Act (1 of 1872) Ss. 103and106-Scape of
The appellant is the husband of the deceased. The evidence in the case established that, the relations between .the· deceased and her mother-in-law; were very
strained; that, on the morning of the murder following a quarrel between them the
appellant went with his wife, the deceased, into a room, into which his father and
mother then followed; that, immediately thereafter, cries of the murdered woman
were heard to save her from being killed; and, that, a little while later, the appellant
and his father conveyed the dead body of the deceased and disposed it of: by burning it at the burning ghat without informing the relations of the deceased who were
Jiving in the town and without performing any funeral rites.
On this evidence, rejecting the appellant's contention that the deceased died
accidentally of injuries caused by fire, the trial court convicted the appeJlant, his
father; and mother for offences under s. 302/34 I. P. C. The trial court also con.
victed the appellant and his father under s. 201, J, P. C.
On appeal, the
High
Court acquitted them of the offence under s. 302/34 I. P. C. but found the appellant
alone guilty of the oftCnce under s. 302 J. P. C.
The High Court also found the
appellant and his father guilty under s. 201 I. P._C. and passed a sentence of three
years against the father. No separate sentence on the appellant was passed in view
of the sentence of life imprisonment for the offence under s. 302.
'
In appeal to this Court,
HELD : (Q The evidence regarding death by burning consisted 1nostly of
rumours and beliefs. It was clearly hearsay and was rightly excluded by the lower
courts.
(2) Under Ss. 103 and 106, Evidence Act, the burden of proving such a plea
specifically set up by an accused, which n1ay absolve hin1 from criminal liability,
lies upon him; though, the quantum of evidence by which he may succeed in discharging the burden, may be lower than the burdcil'resting upon the prosecution
to establish the guilt of the accused beyond reasonable doubt. The best evidence
would have been that of a doctor who could have been called by the appellant on
his phone, but no doctor was called. [79BJ
(3) But, neither the application of s. 103 nor of s. 106, Evidence Act, could,
however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is
only \Vhen the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. [79D]
(4) In the present case, after the acquittal of the appellant's father and 1nother
for murder under Ss. 302/34, I. P. C., the individual liability of the appellant has
to be established by the prosecution before
he could be convicted under s. 302
J.P. C. simp/iciter.- There is nothing in the present case which could fasten or conclusively fix the li:ability for any particular or separate act of the appellant which
may be said to have caused his wife's death.
[79H]
K. G. Patilv. State of Maharashtra, [1964] I S.C.R. 678, Solian Lal v. State of
U. P., [1971] l S.C,C. 498 and Yashwant anil Ors. v. Stare of Maharashtra, [1973J
I S.C;R. 291, followed.
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SAWAL DAS V. BIHAR (Beg, /,)
75
(5) Further, the prosecution has not examined an important witness namely,.
the maid servant, who was on the varandah at the time of the occurrence. Her·
evidence was necessar1 for unfolding the prosecution case and hence, the prosecution should not have withheld her evidence whatever may be its effect upon the
ca5e. The appellant could, there ask the Court to give him the benefit of

## Text

74
SAWAL DAS
STAT);: OF BIHAR
January 9, 1974
[M. H. BEG AND P. N. BHAGWATI, JJ.J
Indian Penal Code (Act 45 of 1860), s. 34 and 302-Circun1sta11tial evicknceAccusedchargedunders. 302/34-When accused1nay be convicted unders.
302,
when the others are acquitted under s. 302/34-0./Jence under s. 201-Sentence.
Evidence Act (1 of 1872) Ss. 103and106-Scape of
The appellant is the husband of the deceased. The evidence in the case established that, the relations between .the· deceased and her mother-in-law; were very
strained; that, on the morning of the murder following a quarrel between them the
appellant went with his wife, the deceased, into a room, into which his father and
mother then followed; that, immediately thereafter, cries of the murdered woman
were heard to save her from being killed; and, that, a little while later, the appellant
and his father conveyed the dead body of the deceased and disposed it of: by burning it at the burning ghat without informing the relations of the deceased who were
Jiving in the town and without performing any funeral rites.
On this evidence, rejecting the appellant's contention that the deceased died
accidentally of injuries caused by fire, the trial court convicted the appeJlant, his
father; and mother for offences under s. 302/34 I. P. C. The trial court also con.
victed the appellant and his father under s. 201, J, P. C.
On appeal, the
High
Court acquitted them of the offence under s. 302/34 I. P. C. but found the appellant
alone guilty of the oftCnce under s. 302 J. P. C.
The High Court also found the
appellant and his father guilty under s. 201 I. P._C. and passed a sentence of three
years against the father. No separate sentence on the appellant was passed in view
of the sentence of life imprisonment for the offence under s. 302.
'
In appeal to this Court,
HELD : (Q The evidence regarding death by burning consisted 1nostly of
rumours and beliefs. It was clearly hearsay and was rightly excluded by the lower
courts.
(2) Under Ss. 103 and 106, Evidence Act, the burden of proving such a plea
specifically set up by an accused, which n1ay absolve hin1 from criminal liability,
lies upon him; though, the quantum of evidence by which he may succeed in discharging the burden, may be lower than the burdcil'resting upon the prosecution
to establish the guilt of the accused beyond reasonable doubt. The best evidence
would have been that of a doctor who could have been called by the appellant on
his phone, but no doctor was called. [79BJ
(3) But, neither the application of s. 103 nor of s. 106, Evidence Act, could,
however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is
only \Vhen the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. [79D]
(4) In the present case, after the acquittal of the appellant's father and 1nother
for murder under Ss. 302/34, I. P. C., the individual liability of the appellant has
to be established by the prosecution before
he could be convicted under s. 302
J.P. C. simp/iciter.- There is nothing in the present case which could fasten or conclusively fix the li:ability for any particular or separate act of the appellant which
may be said to have caused his wife's death.
[79H]
K. G. Patilv. State of Maharashtra, [1964] I S.C.R. 678, Solian Lal v. State of
U. P., [1971] l S.C,C. 498 and Yashwant anil Ors. v. Stare of Maharashtra, [1973J
I S.C;R. 291, followed.
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SAWAL DAS V. BIHAR (Beg, /,)
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(5) Further, the prosecution has not examined an important witness namely,.
the maid servant, who was on the varandah at the time of the occurrence. Her·
evidence was necessar1 for unfolding the prosecution case and hence, the prosecution should not have withheld her evidence whatever may be its effect upon the
ca5e. The appellant could, there ask the Court to give him the benefit of the presumption under s. 114 illus_tration (g), Evidence act and to infer that, if she had
been produced, her evidence would have damaged the prosecution case agai~t
the appellant. Her statement under s. 164, Cr. P. C., could only be used as evidence to corroborate or contradict her if she had appeared as a witness at the trial,
and could not be relied upoii by the prosecution. [80 G, H]
Stephan Sneviratne v. The King. A.I.R. 1936 P. C. 289, 300, referred to.
(6) Therefore, although it must be held that the deceased was murdered it was·
not possible to find conclusively that the person who could have throttled or done
some other act which actually killed the deceased was the appellant and not his·
father or mother.
(7) So far as the case of disposal of the body by the appelfant was concerned
the circun1stantial evidence \Vas rightly believed and held to be conclusive by both
the Courts below. [82G]
(8) As regards sentence, the appeUant deserves the n1aximum sentence that
can be imposed under s. 201, I. P. C. A distinction between the case of the appel'-
Jant and his father, as regards sentence is justified because; (a) It was the duty
of the appellant as a husband to have done something to protect his wife even if
fl is assumed for the sake of argument, that the actual death may have been brought
about by the acts of others, and, (b) the appellant had taken a leading part in dis~
posing of the body of the murdered woman. [83BJ
CRnUML APPELLATE JURISDICTION : Criminal Appeal No. 70'
1972.
Appeal by Special Leave from the Judgment and Order dated the·
16th September, 1971 of the Patna High Court in Criminal Appeal No ..
90 of 1968.
A. N. Mui/a, S. N. Misra, S. S. Jauhar and Sud/la Misra, for the·
appellant.
R. C. Prasad, for the respondent.
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The Judgment of the Court was delivered by
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~-.
BEG, J.-The appellant before us by special leave, Sawal Das, hiS'
father Jamuna Prasad, and his stepmother Ka!awati Devi, were charged with Offences punishable under Section 302 Indian Penal Code·
simpliciter on the allegation that they had intentionally caused the·
death of Smt. Chanda Devi, the wife of the appellant, on 28-5-1965,.
in their house in Mohalla Andi Gola, in Muzaffarpur, in Bihar. The
appellant Sawal Das, his father Jamuna Prasad, their motor driver
Sita Ram, and eight other persons were charged under Section 20!
Indian Penal Code for having caused the disappearance of the body of
Smt.- Chanda Devi with a view to concealing the murder. Furthermore, Smt. Kalawati Devi was charged under Section 302/109 Indian
Penal Code for having instigated the murder of Chanda Devi. The
Trial Court had amended and converted the charges against the appellant and Jamuna Prasad and Kalawati Devi into those under Sections
302/34 Indian Penal Code and convicted each of them with the aid of
Section 34 Indian Penal Code for the offence of murder and sentenced
. 76
SUPREME COURT REPORTS
[19741 3 S.C.R.
them to life imprisonment. Jt had also convicted the appellant and
his father under Section 201 Indian Penal Code, but it did not pass
separate sentences against them for this offence. The driver Site Ram
was also convicted under Section 201 Indian Penal Code and sentenced to three years rigorous imprisonment. It acquitted all the other
accused persons. On appeal, the High Court of Patna had acquitted
the appellant, his father, and his step-mother of offences punishable
under Section 302/34 Indian Penal Code, but it found the appellant
alone guilty of an offence punishable under Section 302 Indian Penal
Code simpliciter and sentenced him to life imprisonment. It had
also found the appellant and his father guilty under Section 201 Indian
Penal Code, but, while passing a sentence of three years rigorous imprisonment on Jamuna Prasad, it had not passed a separate sentence
on the appellant in view of his conviction under Section 302 Indian
Penal Code. It had allowed appeals of Kalawati Devi and Sita Ram
and acquitted them.
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The whole case against the appellant depends upon circumstantial
evidence. There is no eye witness of the murder which was alleged
to have 'been committed by the appellant, his father, and step-mother
conjointly on the morning of 28-5-1965 at about 8.00 a.m. The Sessions Judge had relied upon the following proved facts and circumsD
lances to convict the three accused persons of murder under Sections
302/34 Indian Penal Code :
I. The relations between Sm!. Chanda Devi and her step-motherin-law, Smt. Kalawati Devi, who were living in the same house with
their respective husbands and children, were strained so that there were
frequent quarrels between them.
2. The appellant as well as his father Jamuna Prasad used to
take the side of Smt. Kalawati in the quarrels between the murdered
wife and her mother-in-law.
3. On the morning of the murder, there was a particularly sharp
quarrel between· the deceased and Sm!. Kalawati so that Smt. Kalawati, who was living in a room adjoining that of Smt. Chanda DeYi
on the first floor of the house, called out to the appellant that his
"rascal wife" was quarrelling with her and informed him as well as
Jamuna that either she or Chanda Devi will live in the house henceforth.
4. The appellant and his father Jamuna Prasad went upstairs to the
Verandah where the quarrel was taking place and the appellant took or
pushed Chanda Devi inside her room followed by the appellant'•
father and his step-mother.
5 .. I1nn1ediatc1y after that, cries of atleast "Bachao" ~~Bachao ",
were heard from inside the room. No body heard the voice of Smt.
Chanda Devi after that.
5. Immediately after these cries, the children of Chanda Del'i
wer · eard crying and uttering words. indicating that their mother
was either being killed or had been killed.
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SAWAL DAS v. BlllAR (Beg, I.)
77
7. A short while after that, the appellant and his father Jamuna
Prasad were seen bringing a gunny bag with the help of their driver,
Sita Ram, and another person, and keeping it in the luggage boot of
the car which had been brought there by the driver.
8. The car, containing the body of the deceased Chanda Devi,
was driven fast and taken to what is known as Pahleza-Ghat, 50 miles
away, to be burnt there at night. The car was shown to have crossed
Sonepur Bridge at 9.00 p.m.
9. The relations of the deceased Smt. Chanda Devi, who were
Jiving in the town, were not at all informed by the appellant or other
members of his family, that she had died either naturally or accidentally.
10. No persons who usually performed the funeral rites in the
family were shown to have been informed and there was no funeral
procession of the usual kind. But, some of those related to the appellant, who were co-accused for ·the offence of illegal disposal of the
body, were said to have followed in a truck.
11. Some blood, which was said to have distintegrated so much
that its origin could not be determined, was shown to have been scraped
from the boot of the car as well as from inside the car.
The Trial Court had come to the conclusion that, upon the estabJished circumstances listed above, no other inference was left open
to the Court except that the appellant and his father and step-mother
had conjointly committed the murder of the deceased Smt. Chanda
Devi on the morning of 28-5-1965 and that the appellant and his
father had then hastily and stealthily disposed of the body in order
to oonceal the commission of the offence. It had also taken into
account, in coming to this conclusion, the fact that the appellant had
unsuccessfully set up a plea, in his written statement, that Smt. Chanda
Devi, who was alleged by him to be wearing a Nylon Saree, said to
have caught fire accidentally while she was using a Kerosene stove in
her room, died of extensive burns on her body and collapsed. The
appellant had alleged that Smt. Chanda Devi was debilitated and
kept a bad health due to frequent pregnancies and was also sufferini:
from Asthma, a weak heart, and abdominal complaints. She had
given birth to six children.
The Trial Court observed that no Doctor was called in to substantiate the appellant's plea. Furthermore, it pointed out that, as a
highly qualified Doctor, Dr. G. B. Sahai, had deposed, normally death ·
would not take place immediately as a result of accidental burning of
the kind alleged by the appellant and that there would have been evidence of rolling on the ground or other acts of the deceased in attempts
to save herself in such an event. The Trial Court had also believed
the evidence of the relations of .Chanda Devi that she was enjoying
good health so that the bare assertions of the appellant that 'he had
a weak heart could not be accept<d. It also observed that no burnt
pieces of cloth or marks of smoke or soot on the walls or roof of the
room in which Smt. Chanda Devi had admittedly died were shown to
exist.
78
SUPREME COURT REPORTS
C!974J 3 s.c.R.
Learned Counsel for the appellant drew our attention to a numb"
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of pieces of evidence, such as a boil on the finger of Jamuna multiple
irregular areas of suspected burns, varying from l" to 1/3",in length
and half inch to 3/4" in width, on the lower third of right fore-arm.
ulnar side, of the appellant, when he was examined by Dr. 1. Nath
-On 2-6-1965, the statement by a witness that he saw some smoke comine
.out of the house at the time of the alleged murder, the rumour of her
<leath by burning mentioned by several witnesses, which found a
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.Place in the information sent to the Police on 30-5-1965 by Lallu
Prasad, P.W. 28, a relation of the murdered wife, and into another
written information given by Hawaldar Gorakhnath Singh, P.W.3, at
the Police Station, on 28-5-1965, and other similar bits of information
and belief deposed to by witnesses.
So far as the information dated f30-5-1965 (Ex. 17) treated as
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F.I.R. by the Police, or the information given by Gorakhnath Singh
.on 28-5-1965, which, according to the appellant, ought to be treated
.1s a First Information Report, and other pieces of information and
belief given by the witnesses are concerned, it is clear that these are
based on hear-say which was rightly excluded. The Trial Court
pointed out that the appellant and other members of his family were
the sources of these false rumou1s circulated by them so as to protect
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themselves against an accusation for murder. We, therefore, attach
no importance whatsoever either to the document which the prosecution or the one which the appellant placed before us as the First Infor1nation Report. These contain nothing more than rumour and hearsay because those who could have reported the commission of an
·offence were actually the offenders interested in concealing its com1nission and misdirecting investigation.
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As regards the burns on the body of the appellant, the Trial Court
Tightly pointed out that the Doctor had stated on 2-6-1965 that they
were 3 or 4 days old. They were not shown to be connected with
<iny attempt to extinguish a fire which could have burnt Smt. Chanda
Devi. The best evidence in such a case could have been that of a
Doctor who, as the High Court pointed out, shCJLi!d have been call<tl
}'
but was not called despite the fact that there was a telephone in the
'house.
·
We think that the burden of proving the plea that Smt. CI1anJa
Devi died in the manner alleged by the appellant lay upon the appellant. This is clear from the provisions of Sections 103 and 106 of the
Indian Evidence Act. Both the Trial Court and the High Court had
rightly pointed out that the appellant had miserably failed to gi•·e
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,credible or substantial evidence of any facts or circumstances which
.could support the plea that Smt. Chanda Devi met her death because
her Nylon Saree had accidentally caught fire from a kerosene stove.
The Trial Court had rightly observed that the mere fact that some
witnesses had seen some smoke emerging from the room, with a kitchen
nearby at a time when food was likely to be cooked, could not indicate
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ihat Smt. Chanda Devi's saree had caught fire. Neither the murdered
woman nor the appeHant nor any member of his family was shown t0
have run about or called for help against a fire.
SAWAL DAS V, BIHAR (Beg, J.)
79
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Learned Counsel for the appellant contended that Section 106
o( the Evidenee Act could not be called in aid by the prosecution
.I
because that section applies only where a fact relating to the actual
commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which
an accused did a particular act alleged to constitute an offence. The
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language of Section 106 Evidence Act does not, in our opinion, warrant
putting such a narrow construction upon it. This Court held in
Gurcharan Singh v. State of Punjab(!), that the burden of proving a
plea specifically set up by an accused, which may absolve him from
criminal liability, certainly lies upon him. It is a different matter that
the quantum of evidence by· which he may succeed in discharging his
burden of creating a reasonable belief, that circumstance absolving
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him from criminal liability may have existed, is lower than the burden
resting upon the prosecution to establish the guilt of an accused beyond
reasonable doubt.
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Neither an application of Section 103 nor of 106 of the Evidence
Act could, however, absolve the prosecution from the duty of disD
charging its general or primary burden of proving the prosecution
case beyond reasonable doubt. Tt is only when the prosecution has
led evidence which, if believed, will sustain a conviction, or, which
makes out a prima facie case, that the question arises of considering
facts of which the burden of proof may lie upon the accused. The
,crucial question in the case before us is :
as the prosecution discharged its initial or general alld primary burden of proving the guilt
of the appellant beyond reasonable doubt?
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Perhaps the Trial Court had adopted a more logical course upon
facts and circumstances indicating that the appellant was one of the
three persons whose conjoint actions had, on the morning of 28-5-1965,
.....
resulted in the death of Smt. Chanda Devi. It may be that the appeHant was the primary or the main actor in the actual commission of
the murder after his step-mother had sought his aid in what appeared
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to be an appeal to him by her to teach his wife a lesson so that she
may not be trou1>lcd by her any more. But, the effect of the finding
that the appellant went into the room from which the cries of the
murdered woman, to save her from being killed, came immediately
afterwards, is diluted by the evidence that Jamuna Prasad and Smt.
Kalawati had followed him.· The High Court's view could perhaps
find some support from the fact that Jamuna Prasad was seen paci·
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fying and rebuking the children outside while the appellant may have
been dealing with his wife in a manner which brought about her death,
But, all this is a matter of conjecture. Lurking but not un-reasonable
.t
doubts and suspicions seem to us to envelope and assail the prose·
. cution case atleast after Jamuna Prasad and Smt. Kalawati have been
acquitted. As the learned counsel for. the appellant has rightly
pointed out, after the acquittal of Kalawati and Jamuna Prasad for
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murder, by the use of Section 34 Indian Penal Code, the individual
and not the conjoint liability of the appellant has to be established
by the prosecution before the appellant could be convicted under
(l) A.LR. 19S6 S.C. 460.
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80
SUPREME COURT REPORTS
!1974] 3 S.C.R,
Section 302 Indian Penal Code simpliciter. Beyond the fact that the
appellant is the husband of the murdered wife, who might be ordin.arily expected to take t~e ini'.iative in .tea~hing her a lesson, especially when Smt. Kalawati had mvoked his aid, and a possibly natural
reluctance of a normal father-in-Jaw to take the initiative or a leading
role in such a matter, both of which could be matters of conjecture or
presumptjon only, there is nothing which could fasten or conclusively
fix the liability for any particular or separate act of the appellant which
may be mid to have caused his wife's death.
We find that the High Court had not dealt with the question whether a distinction could be made between the case of the appellant on
the one hand and his father Jamuna Prasad and his step-mother Kala·
wati on the other quite satisfactorily, so far as the offence of murder
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is concerned. Nevertheless, we may have agreed with its conclusion,
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on the evidence on record, that the appellant alone was liable for the
murder of his wife Smt. Chanda Devi and we may not have disturbed
its finding of fact but for another feature of the case which stares one
in the face. We proceed now to deal with this feature.
Even if, as the Trial Court and the High Court had correctly held,
there is admissible and credible evidence of five witnesses, Ganesh
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Prasod, P.W. 1, Nand Kishore, P.W. 2, Radhey Shyam Sharma, P.W.9,
Laxmi Narain, PW. 16, and Basdeo Prasad, P.W. 27, who are said to
have heard or watched from outside, from varying distances, Of what
was going on in the Verandah, no eye witness was produced who could
prove what actually took place inside the room where the murder was
committed. The only evidence given of what could have taken place
inside the room was the cry of "Bachao Bachao" although there is
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some understandable variation between accounts of witnesses as to
whether the murdered woman also uttered some more words showing
that she was being actually killed. We also agree with the view that
the evidence of witnesses about what the children said or did at that
time is admissible under Section 6 of the Evidence Act. In view of
some evidence in the case that the appellant's children had refrained
from revealing any facts against the appellant or his father or his stepF
mother, when they were questioned by relations or by the Police, it
could be urged that there was no point in producing the children.
The Court could also have rightly decided, in such circumstances.
not to exan1ine them under Section 540 Criminal Procedure Code.
But, there is no explanation even attempted to sho\v why the Maid
servant, Geeta Kurmini, who, according to the pros:::cution case, was
also in the Verandah at the time of the occurrence, was not produced
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at the Trial although her statement was recorded under Section 164
Criminal Procedure Code and was brought on the record (Ex. 12).
This ~tatement could only be used as evidence to corroborate or contradict Geeta Kurmini if she had appeared as a witness at the trial.
The appellant could, therefore, quite reasonably ask the Court to give
him the benefit of the optional presumption under Section 114 illustration (g) of the Evidence Act and lo infer that, if she had been proH
duced, it would have damaged the nrosccution case against the appellant. Her statement, if it had been there as evidence in the case, may
very well have shown that it was Jamuna who was taking the leading
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SAWAL DAS V. BillAR (Beg, /.)
81
part in bringing about the death of Smt. Chanda Devi. There ··is
some evidence in the case as to the kind of man Jamuna was. It shows
that he was not a naturally kind or gentle or amiable individual liked
by people. The normal inhibitions of a father-in-law with regard to
his daughter-in-law, which learned Counsel for the State emphasized so
much, may not really be there at all in this case. Indeed, we think that,
in the circumstances of the case, Geeta Kurmini, the maid servant,.
was a witnessessential to the unfolding of the prosecution case. Her
evidence could not be withheld by the prosecution whatever may be its
effect upon the case.
We think that the principle laid down by Privy
--Couneilin Stephen Sneviratne v. the king (1 ), with regard to
such a witnes, is applicable here. It was observed there (at page 300):
"Their Lordships do not desire to lay down any rules to
fetter discretion on a matter such as this was is so dependent on
the particular circumstances of each case. Still less do they
desire to discourage the utmost candour and fairness on the part
of those conducting prosecutions; but, at the same time they
cannot, speaking generally, approve of an idea that a prosecution
must call witnesses irrespective of considerations of number and
of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, confusion
is very apt to result and never is it more likely to result than if the
prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution
is based, must, of course, .be called by the prosecution, whether
in the result the effect of their testimony is for or against the
case for the prosecution". '
Mr. Mulla, appearing for the appellant, has also drawn our attention to K.G. Patil V. State of Maharashtra (2). This Court held there
that, when two out of three accused persons, each having been charged
under Section 302 read with Section 34 Indian Panel Code, were acquitted, it must be assumed that the two acquitted persons did not participate in the commission of the offence at all. It is contented that
the natural result of this view is that the 'P"rticular act of the individual accused which brought about the death of the murdered person
must be established beyond doubt before he is singly and separately
convicted under Section 302 Indian Penal Code simpliciter.
Our attention was also invited to Soha11 Lal v. State of U.P.,(3}
where it was held by this Court that in the absence of evidence to show
which act of the accused caused the death of the murdered man, it
would neither be proper to convict the accused person. under Seciion
302 Indian Penal Code simpliciter nor under Section 302 read with
Section 34 Indian Penal Code, when the High Court bad acquitted the
co-accused of charges under Section 302 read with Section .34 Indian
Penal Code, and the State had not appealed against the acquittal.
(I) A1R 1936 P. C. 289 @ 300.
(2)
[1964] (I) SCR 678.
(3)
[1971] (I) S. C. C. 491.
82
SU.PREME COURT REPORTS
[19741 3 S.C.R.
In the case before us, the High Court had actually altered the conA .. ,
viction of the appellant from one under Sections 302/34 I.P.C. to one
under Section 302 I.P.C. thereby implying that he was not guilty of
any offence under Section 302/34 I.P.C.
It is true that this Court
explained, in Yashwant & Ors. V. State of Maharashtra, (1) that the appli·
•.
cability of Section 34 I.P.C. to a case depends upon the particular facts
and circumstances <lf the case. Therefore, we have to scrutinize and
pronounce upon the particular facts of the case before us.
B
We think that, upon the facts of this case, there could be a reason·
able doubt as to whether Section 34 l.P.C. could be applied to conrict
any of the three accused persons of murder. After excluding the
application of Section 34 I.P.C. to the case, the evidence does not
also appear to us to prove conclusively that the appellant must
have either throttled the deceased or done some other act, quite apart
c
from the acts of his father and step-mother, which brought about the
death. This result follows from the totality of evidence and the pre-
~umption from the non-production of Geeta Kurmini whiclt destroys the value of the evidence which weighed so much with the High
Court, that the appellant was doing something like pushing or taking
the murdered woman inside her room at the time when she was last
seen alive.
D
The Trial Court and the High Court relying on the evidence of
some bleeding of the body of the deceased, admitted by the appellant
to have been carried in the car to the burning ghat, and the
absence of evidence of death caused by burning, came to the condusion that the appellant must have throttled the deceased. This
was pure conjecture after eliminating the defence case of burning by
E
accident. If it had been a case of throttling only, it would be difficult
to explain the cries of murdered woman for help which were heard by wit·
nesses on the road unless we assume that the murdered woman cried
out, as she may have done, before the hands which choked her were
-..._j
placed on her throat. Therefore, although we may hold, as we do,
that this must be a case of murder, it is not possible for us to find condusively that it was a case of throttling and of nothing else or that the
F
person who could have throttled or done some other act which actually
.killed the deceased was the appellant and not his father or step-mother.
So far as the case of quick disposal of the body by the appellant is
concerned, the circumstancial evidence was rightly believed and held
to be conclusive by both the Courts below. This evidence was too
damaging to admit of any doubt that the appellant took the leading
G
part in doing away with the remains of the body of his wife after site
had been murdered. The Trial Court and the High Court, while maintaining the appellant's conviction under Section 201 Indian Penal Code,
\
had not fixed l>is sentence. It was urged by Mr. Mulla before us that
the appellant should not be given more than three years rigorous imprisonment just as his father Jamuna had been sentenced to three years
rigorous imprisonment only under Section 201 Indian Penal Code.
l!
It may be mentioned here that, while special leave to appeal was granted
to the appellant against the judgment of the High Court, this Court
(I) [197311 SCR 291.
A
B
c
SAWAL DAS V. BIHAR (Beg, !.)
83
had refused to grant any leave to his father Jamuna to appeal against
his conviction under Section 201 Indian Penal Code. We, however,
think that a distinction between the ease of the appellant and his father
is justified on two grounds mainly; firstly, it was the duty of the appellant,
as the husband, to have done something to protect his wife/even if
we assume, for the sake of argument, that the actual death may have
been brought about by the acts of others ; and secondly, the appliIant had tal::en a leading part in disposing of the murdered woman. We
thinl:: that the maximum sentence which can be passed under Section
201 Indian Penal Code is deserved by the appellant upon facts
and circumstances of this case. Accordingly; we allow this appeal!<>
the extent that we set aside the conviction of the appellant under Section
302 I. P. C., but we maintain his conviction under Section 201 I. P. C.
and sentence him to undergo seven years rigorous imprisonment and
to pay a fine of Rs. 1,000/- and, in default of payment offine, to undergo
further rigorous imprisonment for a term of six months.
V.P.S.
Appeal allowed.