Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 381 (MP)

STATE OF M. P. v. BHARAT SINGH

2008-03-07

ARUN MISHRA, S.A.NAQVI

body2008
Judgment Arun Mishra, J. ( 1. ) The appeal has been preferred by the appellant/State of MP aggrieved by judgment of acquittal delivered by Sessions Judge, Panna in ST No. 57/ 90 on 7.8.92 thereby acquitting the respondents for commission of offence under Section 302 read with Section 34 and section 201 of IPC. ( 2. ) Accused/respondents 1 to 3 were charge sheeted for commission of offence of murder of Smt. Mamta Bai, wife of accused Bharat Singh by throttling her to death and in order to remove the evidence of murder set fire the body of Smt. Mamta Bai to indicate mat she had committed suicide. Accused no. 2 and 3 are maternal-grand father and maternal-grand-mother of deceased Mamta Bai. Mamta Bai suffered extensive bums at about 7 AM on 18.6.1990 in the house of accused and died in close proximity of the time. Prosecution submitted that accused Bharat Singh lodged a report at 12.10 PM on 18.6.90 at PS- Shahnagar to the effect that he and the other two accused persons had gone to work in their Badi (field) in Village-Tiliya Mahgawan, when he returned back soon after for collecting a spade, opened the door and entered the house, he saw his wife Mamta was burning, when he called her, she did not reply, it was about 7AM, he made hue and cry, on that Sukhnandi, Sullu and Raghunath Singh came there and saw his wife dead and extinguished the fire, he was not aware why his wife set herself ablaze. Marg intimation report was recorded. Sub-Inspector A.Khan reached village Tiliya Mahgawan in early morning of 19.6.1990, summoned the witnesses to draw inquest. From the spot a kerosene oil container and its top, an empty and a full match box and a kerosene oil lamp were seized. Body was sent for the autopsy. The sketch map was drawn. Dr. R.K. Balotiya conducted postmortem, removed burnt clothes from the body and burnt hair, sealed them in a packet and handed over to constable Jagdish Prasad. In the postmortem report death was found due to asphyxia . Another clarification from the doctor was also obtained, beside opinion from Chief Medical Officer was also obtained, it was opined that it was case of murder and thereafter setting Mamta bai ablaze. Dr. H.O. Gupta, Forensic Science Expert inspected the spot on 19.6.90 , submitted report (P/15) dated 20th June, 1990. Another clarification from the doctor was also obtained, beside opinion from Chief Medical Officer was also obtained, it was opined that it was case of murder and thereafter setting Mamta bai ablaze. Dr. H.O. Gupta, Forensic Science Expert inspected the spot on 19.6.90 , submitted report (P/15) dated 20th June, 1990. The accused were charge sheeted after due investigation of the case. ( 3. ) Accused abjured their guilt and pleaded innocence. The Trial Court as per the impugned judgment has acquitted the accused persons for commission of offence under Section 302/34 and Section 201 of IPC, Trial Court has held that it was a case of suicide, accused have been acquitted, consequently State has come up in appeal. ( 4. ) Shri S. K. Rai, learned GA appearing for State/appellant has submitted that it is a case where accused had seen his wife burning in the house, death was not due to burn injuries, but due to asphyxia as opined in the postmortem, death took place not in the room but in Parchhi, that is, Verandah , it is not the case that in Parchhi where deceased was found burnt was closed, it was Verandah as such there was no room that death could have been caused due to inhaling of smoke, in the trachea no carbon particles were found. In the postmortem report it was mentioned that in the trachea blood was there. Deceased was done away with and thereafter in order to remove the evidence accused persons set her ablaze and thereafter report was lodged by the husband mentioning the false facts that deceased caught fire in the house, the conduct of the accused is dubious, there are prima facie circumstances occurring against the accused persons of commission of offence of murder of deceased, they have failed to explain their conduct and on the contrary a false report was lodged to screen the offence. Tongue of deceased was swollen and protruding out of mouth, there was bleeding from both the nostrils, trachea contained blood, lungs were found congested, this indicate that death was due to throttling of neck, thereafter body was set ablaze as apparent from postmortem report (Ex.P/6), explanation (P/7) and the opinion (P/8) of CMO, beside the evidence adduced indicates that extra judicial confession was made before four witnesses by the accused, they wanted to win over the doctor and were making every effort in that regard, consequently contacted several persons, the said fact also indicate complicity of accused in commission of offence beside there is evidence of harassment of deceased caused by accused persons. ( 5. ) Shri Surendra Singh, learned senior counsel appearing with Shri M.Mishra for respondents has submitted that it is a case where it has not been established by the prosecution that death was homicidal, accused persons were not seen by any witness committing the offence, the extra judicial confession made to the witnesses cannot be said to be reliable, it is a weak type of evidence, harassment of deceased has also not been established, in an appeal against acquittal even if two views are possible, the one taken by the Court below cannot be interfered with. The asphyxia was caused due to inhaling of smoke. The offence has taken place in a closed room where it was possible to inhale the smoke caused due to burning of body and the clothes that resulted in asphyxia, coming out of tongue. It was the reason of blood having been found in trachea and congestion of lung. He has also submitted that the offence has not taken place where the body was found in Parchhi (Verandah) as it was mentioned in the FIR by the husband that he had opened the door of the room and has found that his wife was burning due to fire. Husband himself lodged the FIR, thus, his conduct cannot be said to be doubtful. ( 6. ) First question for consideration is whether the death was homicidal in nature, as per the prosecution case incident has taken place at 7 AM in the morning on -18.6.90, as per the case of accused Bharat Singh he had seen his wife burning in the house, thus, presence of husband is established in the house at the time when offence was committed. In the FIR lodged by the husband in the form of Dehati Nalish (P/16) it was mentioned that accused had proceeded with maternal-grand-parents to the field thereafter soon came back to the house in order to collect spade. As soon as he opened the door of the room, he found that his wife was burning in fire, he called her, she was unable to speak, then he raised hue and cry, Sukhnandi, Sullu and Raghunath came to the spot and found that his wife was already dead. He fell down, aforesaid persons who came from outside extinguished the fire, he was not aware why his wife set her ablaze. Thus, it is apparent from the FIR that accused Bharat Singh was present when wife was burning and he made no effort to extinguish the fire and has indicated in the FIR that his wife had set herself ablaze cause of which he was not knowing. When we consider the facts mentioned in the FIR juxtapose to the postmortem report and other documents on record, the aforesaid version of the husband is found to be incorrect. In the postmortem report it was clearly mentioned that cause of death of deceased was "asphyxia". It was also mentioned that burns were anti mortem . Query was made from the doctor how he has opined about the asphyxia, he has opined on the basis of Autopsy report that (i) tongue was swollen and protruding out of mouth; (ii) there was bleeding from both the nostrils; (iii) trachea contains blood; (iv) lungs congested. It is further mentioned in the opinion (P/7) that it is presumed that after respiratory arrest death takes place but cells still remains live for sometime. After sometime cellular death takes place. In this case, it may be possible that body was burnt immediately after death due to asphyxia and the findings of anti mortem bum may have been mentioned due to cellular activeness after death. Findings of autopsy surgeon were further referred for opinion to CMO, he has sent opinion in (P/8) that death was due to asphyxia and immediately thereafter deceased was set ablaze. In the postmortem report it was mentioned that there were 100% third degree burn all over the body. Findings of autopsy surgeon were further referred for opinion to CMO, he has sent opinion in (P/8) that death was due to asphyxia and immediately thereafter deceased was set ablaze. In the postmortem report it was mentioned that there were 100% third degree burn all over the body. There was blackening of body and pugilistic attitude, smell of kerosene oil was coming out from body, eyes burnt and closed, there was blood coming out from both the nostrils, mouth open, tongue swollen and was coming out from mouth, abdominal wall, viscera and private parts burnt, there was dust found all over the body. It was further mentioned that trachea contains blood, lungs were congested, both chambers of heart were found empty. Walls of abdomen, peritoneum were also burnt, stomach was empty and burnt, small intestine and its contents were pale and empty, large intestine and its contents were pale and empty. Burnt pieces of clothes and hair of head were seized and preserved for examination. It is apparent from the PM report that cause of death was not the burn injuries, cause of death was asphyxia, she was done away with , and thereafter she was set ablaze in order to remove the evidence of commission of offence. Shri Surendra Singh has submitted that death took place in a closed room door of which was also closed, thus, it was possible for the deceased to have inhaled poisonous gases coming out due to burning of body and clothes due to that deceased was suffocated to death , that explains the death due to asphyxia which was suicidal in nature. We are unable to accept the aforesaid submission on facts raised by Shri Surendra Singh, learned senior counsel appearing for respondents. From the spot map (Ex.P/4) it is clear that place of incident where the deceased was burning was not inside the room but was in "Parchhi", (verandah) and the place where accused entered the house is shown at Sr.No.2, that is also Parchhi (Verandah), at Sr.No.l dead body was lying kerosene lamp, match box,etc. were also placed near body. From the spot map (Ex.P/4) it is clear that place of incident where the deceased was burning was not inside the room but was in "Parchhi", (verandah) and the place where accused entered the house is shown at Sr.No.2, that is also Parchhi (Verandah), at Sr.No.l dead body was lying kerosene lamp, match box,etc. were also placed near body. It is also apparent from the inspection report (P/15) of Forensic Science Expert Dr.H.O.Gupta (PW20) of 19.6.90 at 9 AM, he found on the spot burnt pieces of clothes, smell of kerosene oil, ground surface was also having black marks of burning and the place above that was having marks of smoke and some of the wooden logs were found in burnt condition. When the report (P/15) is considered, it leaves no room for any doubt that place of incident was in Parchhi, it was not visible from outside as apparent from spot map. The submission of counsel that accused would not have committed the offence in Parchhi (Verandah) as that place was visible to others is falsified by the spot map. From the spot map it is clear that Parchhi was not visible in any manner whatsoever from outside. Thus, it is apparent that death did not take place in closed room but verandah, it was clearly homicidal in nature, coming out of blood from the nostrils, presence of blood in trachea, tongue swollen and protruding out of mouth, lungs were congested all indicate that it was a case of causing death by asphyxia , absence of ligature marks on the body of deceased is of no consequence in the instant case due to extensive 100% burns. When we consider statement of Dr.R.K.Balotia, his conduct does not prima facie inspire confidence, firstly he has mentioned in the postmortem report that the burns were anti mortem and then death was due to asphyxia. He did not opine in the postmortem report that death was due to suicide or it was homicidal which he should have at the first instance, when a query was made that how he has given two views, he has later on clarified on requisition letter (P/7) that death was due to asphyxia and as cells remain active even after death in case a person is burnt immediately after death burn would appear to be anti mortem burn as it takes time for cellular death. In the circumstances it is apparent that death was not due to inhalation of gases as the place was open verandah and no other article in the room was found burnt which would have created thick smoke so as to be inhaled to cause death due to suffocation, since it was not a close room also where the death took place, it was an open place, there was no such possibility. Though verandah was having roof but it was not closed from other sides, rooms were specifically shown in the map, thus, the place where the body was burnt and found the death due to suffocation was not possible due to inhaling of gases caused due to burning of body, it is not the case that any other article burnt except the body and the clothes of the deceased, thus, we have no hesitation in rejecting the submission raised by Shri Singh learned Sr. Counsel appearing for respondent that death was caused due to suffocation, it was not a case of homicidal death. The accused was in the company of deceased when she was burning is apparent from FIR itself, though it appears that the story that Bharat Singh came back to collect spade was also set up in order to save the skin. The conduct of accused indicates that he has clearly lodged a false report that his wife set herself ablaze, the reason of which he was not aware. It was not a case of commission of death by suicide or due to burning. The postmortem report opinion expressed in P/7 and opinion of CMO makes it clear that it was homicidal death, death was due to asphyxia, asphyxia was not caused due to smoke or suffocation. No carbon particles were found in the trachea of deceased absence of which also indicates that she was done to death before, she was set ablaze in order to remove the evidence of commission of murder. Shri Surendra Singh has also relied upon a decision of Apex Court in C.K.Raveendran vs. State of Kerala AIR 2000 SC 369 . In the postmortem report, the doctor has categorically stated that exact cause of death cannot be ascribed and reserved his opinion pending result of chemical analysis. Shri Surendra Singh has also relied upon a decision of Apex Court in C.K.Raveendran vs. State of Kerala AIR 2000 SC 369 . In the postmortem report, the doctor has categorically stated that exact cause of death cannot be ascribed and reserved his opinion pending result of chemical analysis. The doctor in his subsequent report was not able to give definite opinion as to injuries found on the dead body whether could be ante-mortem or post-mortem. In the circumstances, it was held that it could not be concluded that death of deceased could only be homicidal. In the instant case, definite opinion has been given on query being made and opinion of CMO is also clear. ( 7. ) We also find no merit in the submission made by Shri Surendra Singh that there is no eye witness account that accused committed murder of deceased in case it was homicidal death, someone else must have committed the offence accused was not in the house at the time wife was set ablaze by some one else after committing murder. The submission is not at all acceptable, firstly it has not been established that accused was in the field, on the contrary even as per FIR lodged by accused Bharat Singh he was in the house and inspite of seeing his wife burning, he did not make any effort to extinguish the fire. It appears that he raised hue and cry only after ensuring that deceased Mamta bai has died as he has mentioned in the FIR that when he called his wife, she did not respond, it was only after she died and accused was sure that Mamtabai has died, hue and cry was raised and thereafter other persons as per version of accused came and extinguished the fire. The circumstances projected in the FIR also indicate towards guilt of accused. He mentioned wrongly in the FIR that deceased committed suicide. It is apparent from postmortem report that it was not a case of commission of suicide but homicidal death due to asphyxia. Deceased was done away with and thereafter body was burnt. Suggesting false by the accused is a grave suspicious circumstance against him, it was not his case someone else caused death or set the body ablaze. It is apparent from postmortem report that it was not a case of commission of suicide but homicidal death due to asphyxia. Deceased was done away with and thereafter body was burnt. Suggesting false by the accused is a grave suspicious circumstance against him, it was not his case someone else caused death or set the body ablaze. In a case where husband and wife were together in the company in the house, burden is on the husband to prove the circumstances in which the death of wife has taken place. ( 8. ) The Apex Court in State of U.P. v. Dr. Ravindra Prakash Mitial, (1992) 3 SCC 300 , has laid down in the backdrop of the fact that death of wife took place in the house, circumstances required explanation from the husband. In the instant case husband was in the company of wife, thus it was necessary for him to explain the circumstances how the death took place. The explanation given by husband is found to be incorrect in the instant case.. In Shri Kishan v. State of Haryana, AIR 1994 SC 1597 , the Apex Court has laid down in the backdrop of the fact that accused was present in the house on the fateful night, medical evidence assumes importance in the case to ascertain cause of death. Medical evidence indicated that death was due to asphyxia as a result of strangulation around the neck. It was not the case of accused that he brought down the dead body and placed it on the cot, the Apex Court held, which corroborated the prosecution version that the death was due to strangulation and accused was responsible for that. In Sheikh Abdul Hamid and another v. State of Madhya Pradesh, AIR 1998 SC 942 , it was considered whether there was possibility of an outsider to have committed the offence, there was no such possibility found as such accused was convicted. In Sheikh Abdul Hamid and another v. State of Madhya Pradesh, AIR 1998 SC 942 , it was considered whether there was possibility of an outsider to have committed the offence, there was no such possibility found as such accused was convicted. In the instant case accused was in the house when he had called others so as to extinguish the fire of burning wife, he himself as per his case did not make any effort to extinguish it, there is no possibility in the instant case of causing death of deceased by strangulation resulting into asphyxia by someone else as husband would have been the last person to spare the actual culprit in case offence was committed by someone else. In Trimukh Maroti Kirkan v. State of Maharashtra, JT 2006 (9) SC 50, the Apex Court has considered that when an offence takes place inside the privacy of a house, held that in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the Courts. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It has been further observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In Collector of Customs, Madras and ors v. D. Bhoormull, 1974 (3) SCR 833 , it was laid down that the law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that the prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case. In State of West Bengal v. Mir Mohammad Omar and ors., (2000) 8 SCC 382 , the Apex Court has observed that the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. When the prosecution succeeded in establishing the particular circumstances, the court has to presume the existence of certain facts which it thinks likely to have happened. In State of Tamil Nadu v. Rajendran, (1999) 8 SCC 679 , State of U.P. v. Dr. When the prosecution succeeded in establishing the particular circumstances, the court has to presume the existence of certain facts which it thinks likely to have happened. In State of Tamil Nadu v. Rajendran, (1999) 8 SCC 679 , State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 , State of Maharashtra v. Suresh, (2000) 1 SCC 471 , Ganesh Lai v. State of Rajasthan, (2002) 1 SCC 731 and Gulab Chand v. State of M.R, (1995) 3 SCC 574 , the Apex Court has observed that in a case based on circumstantial evidence where no eye-witness account is available, the principle is that when an incriminating circumstance is put to the accused and the accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In Nika Ram v. State of Himachal Pradesh, 1973 (1) SCR 428 , the Apex Court has observed that a wife was murdered with a sharp edged weapon, when the accused alone was with his wife in the house and the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 , the Apex Court observed that when the appellant was prosecuted for the murder of his wife inside his house, when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement u/s 313 of Cr.P.C, The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prima accused in the commission of murder of his wife. ( 9. ) Shri Surendra Singh, learned senior counsel has relied upon the decision in Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622 wherein the Apex Court has laid down that following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established :- "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahebrao Bobade vs. State of Maharashtra , (1973) 2 SCC 793 : AIR 1973 SC 2622 where the following observations were made : "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." He has also relied upon decision in Mulak Raj and others vs. State of Haryana (1996) 7 SCC 308 wherein the place of incident was shown to be kitchen which was neat and clean and there was no smell emanating from the kitchen, but even if that is so, the Court observed it is difficult to appreciate how this circumstance by itself points a guilty finger to the accused or any one of them. Merely because deceased Krishna Kumari who was staying with the accused had died a homicidal death in their household and her dead body was found in the kitchen with postmortem burns it cannot be said that the said circumstance by itself would connect all the accused or any one of them with the crime. The circumstances in the aforesaid case were totally different. The circumstances in the aforesaid case were totally different. He has also relied upon decision of Apex Court in Manjunath Chennabasapa Madalli vs. State of Karnataka AIR 2007 SC 2080 to submit that only the fact that there was unnatural death is not enough to convict an accused under Section 498-A IPC, dying declaration was also disbelieved. The facts are totally different in the instant case. In the instant case, the conduct of the accused persons of hiding the death and lodging false report by one of them ,effort was made to remove the evidence of homicidal death due to asphyxia by setting ablaze the deceased to indicate it that it was a case of commission of suicide. The facts unerringly points to the fact that they have tried to remove the evidence of commission of offence of murder also by setting ablaze the body of deceased. Counsel has referred to Modis Medical Jurisprudence, Chapter XI discussing "suffocation" , the relevant portion is quoted below .-"Suffocation - persons removed from houses destroyed by fire are often found dead from suffocation due to the inhalation of smoke, carbon monoxide and other irrespirable gases, which are the products of combustion. In such a case, burns found on the body are usually postmortem. Toxic inhalation of combustion products of synthetic material may aggravate the anoxic effect produced by COHb. Where there is burning of plastic and other synthetic material, liberation of poisonous gases like cyanide, oxides of nitrogen may contribute to death. According to Dutra, burning of nitrogen containing substances, for example, nitrocellulose film and artificial leatherette may liberate dangerous quantities of nitrogen oxide and nitrogen tetraoxide. Ammonia, hydrogen cyanide, hydrogen sulphide and oxides of sulphur are liberated from burning of wool or silk. Polyvinyl chloride on combustion produces carbon monoxide and other dangerous substances, while fats or glycerine liberate acrolein, a highly irritating compound." It is apparent from the aforesaid that the discussion has been made by learned Author Modi with respect to death of person caused in the "house destroyed by fire". In the instant case, house was not destroyed by fire, extent of fire was not so much in the instant case, not even single article burnt in the house except the deceased. In the instant case, house was not destroyed by fire, extent of fire was not so much in the instant case, not even single article burnt in the house except the deceased. In the aforesaid para it has been suggested by Modi that when death is caused due to suffocation due to burning of house, burns are postmortem but the aforesaid discussion cannot be said to be relevant in the instant case. Modi has defined "strangulation" as a violent form of death which results from constricting the neck by means of ligature or by any other means without suspending the body. It is called throttling, when constriction is produced by the pressure of the fingers and palms upon the throat. Strangulation may also be brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances. This is known as mugging. In the other forms of strangulation person may die instantly due to strangulation. The face becomes puffy and cyanosed. bleeding comes from the mouth, nostrils and ears, the hands are clenched . In hanging insensibility is very rapid and death is quite painless. In hanging bleeding from nose, mouth and ears is very rare whereas in the case of strangulation bleeding from nose, mouth and ears may be found. The term, suffocation, is applied to that form of death that results from the exclusion of air from the lungs, by means other than that of the compression of the neck. The causes of suffocation are : (i) smothering or closure of the mouth and nostrils, (ii) choking or obstruction of the air-passages from within, (iii) pressure on the chest (traumatic or crush asphyxia) and (iv) inhalation of irrespirable gases. Shri Surendra Singh, learned Sr. Counsel has submitted that it was due to inhalation of gases, death was caused in the instant case. Modi has dealt with "death by inhalation of irrespirable gases in 22nd Edition at Page 274,275 thus :- "(iv) Inhalation of Irrespirable Gases:- Inhalation of gases, such as carbon dioxide, an anaesthetist using it by mistake, carbon monoxide, hydrogen sulphide, or smoke from a burning house, will produce suffocation. Deaths from sniffing glue have been reported from abroad. Cases following sniffing or "snorting" of heroine or cocaine by addicts were also reported. Such addicts develop nasal septal perforations from habitual sniffing of narcotics. Deaths from sniffing glue have been reported from abroad. Cases following sniffing or "snorting" of heroine or cocaine by addicts were also reported. Such addicts develop nasal septal perforations from habitual sniffing of narcotics. Such perforations range from a pinhead to several centimeters, oval, irregular or round shaped, situated in the nasal septum and can be seen in the nasal anterior with a pocket flash torch. Deaths in confined places have also been reported. A confined space means a space in which because of its construction, location or contents, the accumulation of a hazardous gas, vapour, dust or fume or the creation of an oxygen deficient atmosphere may occur. Some examples are tanks, grain-bins, silos, fermenters, tanning vats, unused wells, walled areas, recently painted holds of ship, sewer-shafts, etc. The confined space may be small or large; partially open or completely enclosed : a simple pit or a sophisticated mixer. An unwary or uninformed person may be suffocated on entering such a confined space. " It is not a case where anesthetist has used the gas by mistake, there was no burning of the house and as discussed the room was also not closed, it was verandah where the accident took place which was not walled area. Thus, it was not possible for accumulation of hazardous gases to cause death. It is apparent from medical evidence that death was caused first and thereafter body was set ablaze. The other symptoms also indicate that it was not a death due to inhalation of irrespirable gases. ( 10. ) Inquest (P/l) also supports the investigation made by Forensic Science Expert Dr.H.O. Gupta (PW.20) . In the inquest it was mentioned that dead body was found in the Parchhi (verandah), there was bleeding from nostrils, the tongue was swollen and protruding out of mouth, face was entirely burnt, there were bums on the entire body, clothes were also burnt, both the hands were having rigidity and were towards upper side. The body was found outside the room in verandah and by the side of the dead body kerosene oil lamp, one empty march box and one filled match box were lying. Thus, place of incident was not inside the room as submitted by learned counsel appearing for respondents. ( 11. ) Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. Thus, place of incident was not inside the room as submitted by learned counsel appearing for respondents. ( 11. ) Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. The circumstances point out towards the guilt of accused persons. We need not go into extra judicial confession as well as harassment of deceased at the hands of accused persons as reliability of the evidence has been impinged upon, we deem it appropriate to refer to the evidence with respect to extra judicial confession. Vishnu Prasad (PW.6) has-stated that accused Bharat and Halke came to his house to a different village Purena and stated that they have committed one mistake of committing murder of deceased Mamta and thereafter set her ablaze, the witness was not having any enmity with the accused persons. We find on record evidence of Suresh Kumar (PW.7) who has also stated that Bharat Singh and Halke came to him and asked him to take them to the doctor admitted their guilt made extra judicial confession of commission of murder of deceased Mamta and thereafter setting her ablaze. Merely by the fact that he was not Sarpanch, Jamindar, Patwari or Chowkidar, credibility of statement of witness is not shaken, he is not shown to be inimical in any manner to the accused persons, infact it appears that accused were making drastic effort to influence the doctor by one way or the other. Consequently, they have contacted the aforesaid witnesses. There is yet another witness, Dinesh Kumar (PW.13), with respect to extra judicial confession, accused had contacted him to influence the doctor of the hospital, admitted the guilt of commission of murder of Mamtabai and thereafter setting her ablaze. He was also not inimical to the accused persons in any manner or interested in deceased or in the family of deceased. Thuddi Rathore (PW.ll) is another witness of extrajudicial confession. He has also stated that accused contacted him in order to influence the doctor but he had refused to help them. The witness was also not inimical to accused in any manner. Thus, it appears that extrajudicial confession was also made by accused Halke and Bharat with respect to commission of offence. He has also stated that accused contacted him in order to influence the doctor but he had refused to help them. The witness was also not inimical to accused in any manner. Thus, it appears that extrajudicial confession was also made by accused Halke and Bharat with respect to commission of offence. Even if we "discard" the extrajudicial confession, we find on record facts and circumstances against accused to be sufficient so as to fasten the guilt on appellants for commission of offence under Section 302 and Section 201 IPC. It was for the accused to explain the circumstances , murder of deceased was committed, accused have not explained their conduct, they were admittedly residing with the deceased, they have not adduced any evidence indicating that they were not in the house when offence took place, thus, complicity of accused persons in the offence is writ large. Shri Surendra Singh, learned Sr. Counsel has relied upon decision of Apex Court in Sandeep vs. State of Haryana AIR 2001 SC 1103 The confession made to the witness was disbelieved on the ground that there was no necessity for the accused to go to the residence of the witness Laxmi Narayan, he was not acquainted with accused nor was a person of status so that he could be helpful to them. No reason was brought on record why accused had gone at the house of witness to make extra judicial confession. In the instant case, facts are different, the accused were making frantique efforts so as to win over the doctor in order to save themselves and, thus, have visited not only one but number of persons in that regard. ( 12. ) With respect to harassment of deceased, Smt. Basanti Bai (PW.1), mother of deceased, has stated that marriage was performed 6-7 years before and after 3 years Vida ceremony was performed, it was for the last 3-4 years, deceased was residing in the house of accused. There used to be quarrel as stated by witness with respect to watch, bicycle, radio and 5 acres land was demanded by the accused. Only 3-4 times after Vida was performed, accused visited the parental house and used to make complaints with respect to harassment used to be meted out. Before 10 days of incident deceased had gone to village Mahgawan from parental house, thereafter the offence took place. Only 3-4 times after Vida was performed, accused visited the parental house and used to make complaints with respect to harassment used to be meted out. Before 10 days of incident deceased had gone to village Mahgawan from parental house, thereafter the offence took place. Rajaram Rathore (PW.2) is uncle of deceased Mamta bai, he has also supported version of Smt. Basanti Bai (PW.l). Ustad Rathore (PW.3) has also stated with respect to harassment and demand of dowry of watch, bicycle, radio and 5 acres of land. Even Phoolbai (PW.17) who was declared hostile has stated that Vida ceremony was performed only 4-5 years before death of Mamtabai. Vida was performed after 4 years has also been stated by Smt. Rukmanibai (PW.18). It is apparent that marriage was performed 6-7 years before incident, Vida was performed 4-5 years before death of Mamtabai. Thus, it is apparent that relationship of husband and wife was not good and deceased used to be harassed by maternal grand parents also as the accused Bharat and deceased were residing with them in the house. ( 13. ) The trial Court has wrongly referred in para 12 of the judgment that blackening inside throat and lungs was found in the instant case, perusal of postmortem report does not indicate that any blackening or carbon particles were found in the throat or lungs. On examination of postmortem report and opinion (P/6 and P/7) of doctor , CMO has opined that death was due to asphyxia and thereafter she was set ablaze. The accused have failed to explain the circumstances against them in the instant case, they have tried to suggest falsely that it was a case of death due to suicide and they have not adduced any evidence in defence so as to explain their conduct. ( 14. ) We find appellants to be guilty of commission of offence under Section 302/34 IPC. For committing murder of Mamtabai due to asphyxia and causing disappearance of evidence of offence and giving false information to save themselves they are held guilty under Section 201 of IPC. We have heard the counsel as to sentence also, we sentence the accused persons to undergo rigorous life imprisonment under Section 302/34 IPC and impose two years R.I. for commission of offence under Section 201 IPC. We have heard the counsel as to sentence also, we sentence the accused persons to undergo rigorous life imprisonment under Section 302/34 IPC and impose two years R.I. for commission of offence under Section 201 IPC. We also impose fine of Rs.5,000 on each of the accused, in default of payment of fine, each accused to undergo further one year R.I. The sentences to run concurrently. Judgment of acquittal is hereby set aside. The respondents are convicted and sentenced as aforesaid. Accused/respondents are directed to surrender, their bail bonds are cancelled. Police to arrest them in case they do not surrender forthwith. The appeal is allowed. Appeal allowed.