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2010 DIGILAW 216 (CHH)

Jitendra Kumar v. State of C. G.

2010-09-10

DHIRENDRA MISHRA, R.N.CHANDRAKAR

body2010
JUDGMENT Dhirendra Mishra, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 19th July 2003 passed in S.T. No. 15/2003 whereby learned Additional Sessions Judge, Khairagarh, District Rajnandgaon has convicted the Appellants under Sections 498-A, 304-B, 302 and 201 of the IPC and Section 4 of the Dowry Prohibition Act and sentenced each of them only under Sections 302 and 201 of the IPC to undergo imprisonment for life and to undergo R.I. for 7 years respectively. However, the Appellants have not been separately sentenced under Sections 304-B & 498-A IPC and Section 4 of the Dowry Prohibition Act, as penalty under Section 302 is higher in comparison to Section 304-B of the IPC. Prosecution Case 2. Case of the prosecution, in brief, is that deceased Vandana Bhawnani was married with Appellant Jitendra in the year 1998. She was tortured and harassed by her husband, father-in-law Pratap Rai, brother-in-law Rajesh and mother-in-law Pushpa Bai for dowry right after her marriage. On 22-10-2002 at 8.30 pm all the accused persons committed her murder for not bringing dowry from her parental home and thereafter set her dead body on fire after pouring kerosene and took her to the hospital for treatment while she was already dead and tried to project that she committed suicide. 3. Merg intimation (Ex.-P/l) was given by Dr. P.S. Parihar (PW-8) through ward boy on 22-10-2002 that deceased Vandana was brought in the hospital with 100% burn injuries in dead condition. After registering merg, PW-10 Rajesh Agrawal performed inquest over the person of the deceased vide Ex.-P/4 and sent the dead body for autopsy to the Government Hospital Khairagarh where Dr. P.S. Parihar (PW-8) and Dr. Seema Jain conducted postmortem on 23-10-2002 and gave their report vide Ex.-P/6. On the same day burnt articles i.e. match box with one stick, broken latch of the door lying on the ground, wet clothes, carbon particles taken out after scratching almirah etc. were seized vide Ex.-P/9. 4. Spot map was also prepared by PW-10 vide Ex.-P/lO. 7 sealed containers (tin container) containing viscera, blood from inside the body of the deceased which came out of her body, hairs of the deceased, clothes of the deceased etc. received from the hospital were seized vide Ex.-P/l1. were seized vide Ex.-P/9. 4. Spot map was also prepared by PW-10 vide Ex.-P/lO. 7 sealed containers (tin container) containing viscera, blood from inside the body of the deceased which came out of her body, hairs of the deceased, clothes of the deceased etc. received from the hospital were seized vide Ex.-P/l1. The part of trachea of the deceased and sample of liquid received from the hospital was also taken into possession vide Ex.-P/12. The above articles seized during investigation were sent for chemical examination to FSL, Raipur vide Ex.-P/14 and report of the FSL is Ex.-P/l 5. Spot map was got prepared by Halka Patwari vide Ex.-P/30. 5. After completing usual investigation, charge sheet was filed against the accused persons in the Court of Chief Judicial Magistrate, Khairagarh, who in turn committed the case to the Court of Sessions Judge and the same was received on transfer for trial by learned Additional Sessions Judge. 6. Learned trial Court framed the charges under Sections 498-A & 304-B IPC & Section 4 of the Dowry Prohibition Act or in alternative Sections 302, 306 and 201 of the IPC. 7. The prosecution examined 10 witnesses in all. Thereafter statements of the accused persons were recorded in which they denied the circumstances appearing against them in the prosecution case. 8. Appellant Jitendra in reply to question No. 53 stated that on the date of the incident he was sitting in his potato shop with his father when son of his maternal uncle came and informed that smoke is emanating from his room whereupon he went to his house leaving his father in the shop and he found that crowed had gathered outside his house. He with the help of Horilal and 2-4 other persons of the neighbourhood broke the door of his house and went inside. He also broke the second door with the help of Horilal and he found that Vandana was burnt. Vandana was suffering from abnormal menstruation for the last 1 1/2 months. She had gone to Raipur for check up 10-15 days before and the doctor had advised her that her uterus would be required to be removed due to cancer. Because of this, she was terribly perturbed. Vandana was suffering from abnormal menstruation for the last 1 1/2 months. She had gone to Raipur for check up 10-15 days before and the doctor had advised her that her uterus would be required to be removed due to cancer. Because of this, she was terribly perturbed. Her brother Rajesh resided at Gandai and his parents were planning to reside at Gandai and because of this also, Vandana used to worry as to how she would live alone in the house. He was residing with Vandana and other family members happily. 9. The accused persons also examined Dr. Smt. Laxmi Jirani and Dr. Ku. Sunita Dhenge in their defence. 10. The trial Court after hearing learned Counsel for the respective parties convicted and sentenced the Appellants as mentioned in paragraph-1 of the judgment, however, acquitted the Appellants of the charge under Section 306 of the IPC. 11. Learned trial Court, after setting out the issues for consideration in paragraph-9 of the judgment, held thus: • The prosecution has established beyond all reasonable doubt that the accused persons continuously tortured and treated deceased Laxmi Bai @ Vandana with cruelty for a period of 4 years till the night of 22-10-2002 for demand of dowry. • The prosecution has proved beyond reasonable doubt that because of ill-treatment meted out to Laxmi Bai @ Vandana by the Appellants for dowry soon before her death she died within 7 years of her marriage under unnatural circumstances and the Appellants caused her dowry death. • Burn injuries present over the person of the deceased were postmortem in nature. The Appellants after committing murder of the deceased have set her dead body on fire and the prosecution has established beyond reasonable doubt that Appellant Jitendra Kumar knowing fully well that the deceased was murdered, in order to screen himself and other accused persons from legal punishment gave incorrect information to Prakash Ram Kumbhwani over phone that Vandana committed suicide by self immolation and all the accused persons knowing fully well that she was murdered in order to screen themselves gave false information that she has committed suicide. 12. Shri Surendra Singh, learned Senior Advocate appearing on behalf of the Appellants submitted that from perusal of the inquest proceedings, it is evident that investigation was being conducted by Rajesh Agrawal (PW-10), SDO(P). 12. Shri Surendra Singh, learned Senior Advocate appearing on behalf of the Appellants submitted that from perusal of the inquest proceedings, it is evident that investigation was being conducted by Rajesh Agrawal (PW-10), SDO(P). Inquest was performed in the presence of her parents and close relatives, however, no complaint regarding dowry demand or harassment was made at that stage. They left Khairagarh on 23-10-2002 and the allegations were made for the first time on 29-10-2002 when Prakash, Rajni and other relatives of the deceased met the SDO(P) and handed over a written complaint (Ex.-P/3) and only thereafter statements of prosecution witnesses were recorded in which the allegations regarding dowry demand and harassment were made. Though crime was registered on 26-10-2002 by Shri Kailash Bajpai (PW-7) vide Ex.-P/5 under Sections 304-B and 498-A IPC, however, there is nothing on record to show that any incriminating evidence was collected against the Appellants prior to 29-10-2002 regarding dowry death of the deceased. The doctors performing autopsy were not able to ascertain the cause of death though they have stated that burn injuries found on the body of the deceased were postmortem in nature. There is unrebutted evidence adduced by the prosecution that the room where the dead body of the deceased was found was locked from inside and the same was broken after the incident by Horilal and Jitendra. Rajesh Agrawal, who has effected the seizure from the spot on the next day of the incident, has also admitted that two doors had been broken to access to the body and the lock of one door was affixed from inside and he has also seized uprooted latch of the door lying on the ground from the spot. Rajesh Agrawal prepared the spot map of Ex.-P/l 0 in the presence of father of the deceased in which it is clearly stated that the door was locked from inside. In view of the incontrovertible prosecution evidence, it is abundantly clear that the deceased had locked herself inside the room and that conclusively proves that she had committed suicide. 13. The autopsy surgeon has admitted in his evidence that the postmortem burns and absence of soot particles in trachea could be due to the fact that the deceased died due to vagal inhibition because of fright and even expert examined by the defence has also given similar evidence. 13. The autopsy surgeon has admitted in his evidence that the postmortem burns and absence of soot particles in trachea could be due to the fact that the deceased died due to vagal inhibition because of fright and even expert examined by the defence has also given similar evidence. The autopsy surgeon is not certain as to the cause of death and had recommended to the I.O. that further opinion be sought from the forensic expert, however, no such opinion was sought. In these circumstances, the finding of the trial Court that murder of the deceased was committed and thereafter her dead body was set on fire is erroneous and when the case could be one of suicide instead of murder, benefit of doubt would accrue to the Appellants. It was incumbent upon the prosecution to prove the presence of the Appellants inside the house at the time of murder. There is evidence available on record that the Appellants resided in the double storied building in which 3 other families also resided. Not a single witness has deposed that the Appellants were present inside the house at or about the time of the incident. The evidence of Rajesh Agrawal that he learned during investigation that the Appellants were inside the house is not only hearsay, but such evidence of eyewitnesses is hit by Section 162 of the Code of Criminal Procedure and such evidence is inadmissible. In the absence of any evidence regarding the presence of the Appellants inside the house at the time of murder, they could not be convicted under Section 302 of the IPC. 14. Appellant Jitendra, husband of the deceased, has pleaded in his defence that the deceased was suffering from severe menstrual problem and she was thoroughly perturbed because of that. The above defence is established from the evidence of Rajni (PW-4) as also from the evidence of defence witness Dr. Smt. Laxmi and from the fact that during postmortem also sanitary pad was found by the autopsy surgeon. 15. Referring to Modi's Medical Jurisprudence, 23rd edition, it was argued that the cherry red colour of blood may change to brown under the influence of heat in the cases of death due to burn injuries and thus, finding of brown coloured blood is consistent that the deceased committed suicide. 16. On the other hand, Shri U.N.S. Deo, learned Govt. 15. Referring to Modi's Medical Jurisprudence, 23rd edition, it was argued that the cherry red colour of blood may change to brown under the influence of heat in the cases of death due to burn injuries and thus, finding of brown coloured blood is consistent that the deceased committed suicide. 16. On the other hand, Shri U.N.S. Deo, learned Govt. Advocate appearing on behalf of the State argued that learned trial Court, after elaborately dealing with the evidence of PW-2 Prakash Rai, brother; PW-3 Sulochana and PW-4 Rajni Makhija, sister, has held their evidence clear, consistent and natural. It has been held that the deceased died in unnatural circumstances in her matrimonial house within 7 years of her marriage and ill-treatment and cruelty towards her by the Appellants for demand of dowry soon before her death is established. The finding is based on proper appreciation of evidence available on record and the same does not call for interference. There is no omission and contradiction in the deposition of PW-3 and PW-4. The trial Court, after elaborately considering the evidence of autopsy surgeon Dr. PS. Parihar, who has noticed absence of carbon particles in trachea, which is also confirmed from FSL report and further considering that dark brown blood was found at the time of postmortem, held that the deceased was subjected to postmortem burn. Rajesh Agrawal (PW-10) has admitted in his evidence (para-44) that during investigation he learned that the accused persons were present at the place of incident, as the shop of accused Jitendra was closed, as it was Tuesday and Gumasta Madam had come. He has further deposed that the evidence in the charge sheet that the room was locked from inside is based on information given by accused Jitendra and he did not find any breaking mark on the door. There is ample evidence available on record to show that the deceased did not commit suicide, she was murdered and thereafter her dead body was set on fire and because of deep burn injuries, marks of injuries over the person was not found in the postmortem. 17. We have heard learned Counsel for the parties. We have perused the record as also the impugned judgment. 18. PW-2 Prakash Rai is the brother of the deceased. He had lodged written complaint of Ex.-P/3 on 29th October 2002 against the accused persons. 17. We have heard learned Counsel for the parties. We have perused the record as also the impugned judgment. 18. PW-2 Prakash Rai is the brother of the deceased. He had lodged written complaint of Ex.-P/3 on 29th October 2002 against the accused persons. He has deposed that 4 years before his younger sister Laxmi was married with Jitendra, Son of Pratap Rai. Everything was alright one to two years after the marriage. Thereafter they started torturing her for dowry. 3-4 months before the incident, Laxmi resided at Simga, however, maternal uncle of Jitendra persuaded her to accompany him. 2 days before the incident, Laxmi came to Simga and a day before the incident she went with Ram Kumbhwani to his sister's house at Raipui from where Appellant Jitendra took her with him. During her last visit, she had told him that the accused persons harassed her for dowry and she had also stated that it is the last opportunity, probably she will not be returning back again. On 22nd October, 2002 Jitendra informed on phone that his sister has set herself on fire and died. 6-7 days after the incident he went to Khairagarh with his uncle and gave written report of Ex.-P/3 to the SDO(P). In cross-examination, this witness has clearly stated that before giving a complaint of Ex.-P/3, he did not lodge any complaint about the incident. He has also stated that he got the complaint (Ex.-P/3) typed at Simga as per advise of one congress ledger. He has further stated that his statement was recorded only once after 6-7 days of the incident at Khairagarh in the office of SDO(P). 19. PW-3 Sulochana has deposed that she does not know as to whom the deceased was married. She does not identify the accused persons, however, she has stated that whenever Laxmi Bai came to Simga, she used to complain that her in-laws harassed her for money. When Laxmi Bai came to Simga for the last time, she did not visit her house. 20. Rajni Makhija (PW-4) is the sister of the deceased. Her evidence is that Laxmi Bai went to Simga on 20-2-2002. On 21-2-2002, she came back to Raipur in her house and on the same evening at about 5.30 she went with her husband Jitendrato Khairagarh. 20. Rajni Makhija (PW-4) is the sister of the deceased. Her evidence is that Laxmi Bai went to Simga on 20-2-2002. On 21-2-2002, she came back to Raipur in her house and on the same evening at about 5.30 she went with her husband Jitendrato Khairagarh. On 22-2-2002 at about 8 pm Jitendra telephoned and informed her that Laxmi has committed suicide by self immolation and called Prakash whereupon she went to Khairagarh with her parents, grandmother and husband. They reached Khairagarh on 23-2-2002 at about 7 in the morning, at that time the police had already taken her dead body. She resided peacefully for one year in the matrimonial home, however, after one year of the marriage, her husband, father-in-law, mother-in-law stalled harassing her for dowry. Her brother-in-law used to have verbal quarrel with her. Her mother-in-law used to say that people of her parental home are beggars. In para-11 of her cross-examination, she has deposed that the deceased gave birth to a female child after one year of her marriage. A month before her death, she had some menstrual problem. She had consulted the doctor and she got partial relief, however, she was not completely cured. She has denied the suggestion that the deceased told her during her visit on 21 -10-2002 that one doctor at Khairagarh had advised removal of uterus by surgery and had apprehended that she might have cancer in uterus. In para-17 of her deposition, she has stated that her statement was recorded on the very next day of the incident and at that time, she made no complaints to the police and she has admitted her signatures in inquest report Ex.-PAL 21. PW-7 Kailash Bajpai was posted as Town Inspector in the Khairagarh police station. He registered the crime against the Appellants vide Ex.-P/5. This witness has admitted in cross-examination that complaint of Ex.-P/3 was not before him till 26-10-2002 when the crime was registered. The statements recorded during merg enquiry are not annexed with the charge sheet, as it bears the signatures of the witnesses. All the statements of witnesses available in the charge sheet were recorded on 29-10-2002. However, he has denied the suggestion that since there were no allegations against the accused persons in the statements recorded during merg enquiry, the same are not included in the case. 22. All the statements of witnesses available in the charge sheet were recorded on 29-10-2002. However, he has denied the suggestion that since there were no allegations against the accused persons in the statements recorded during merg enquiry, the same are not included in the case. 22. The trial Court, on the basis of evidence of Prakash Rai and Sulochana Bai, has held that Rajesh Bhavnani is brother-in-law, Prataprai is father-in-law and Pushpa Devi is mother-in-law of the deceased. Relying upon the evidence of Prakash Rai, Sulochana and Rajni Makhija, it has been held that the Appellants harassed and treated the deceased with cruelty for demand of dowry since 4 years before 22-10-2002. 23. Inquest of Ex.-P/4 was prepared on 23-10-2002 in the presence of Arjun Das, father of the deceased and Raj Kumar, maternal uncle of the deceased and inquest bears the signature of father and sister of the deceased. Rajni has also deposed that her statement was recorded by the police on the very next day of the incident and she did not make any complaint against anyone at that time. The crime was registered on 26-10-2002 by Kailash Bajpai on the basis of merg enquiry, however, statements recorded during merg enquiry have not been produced along with charge sheet or during trial for perusal of the Court. 24. PW-2 Prakashrai in para-3 of his deposition has stated that the deceased came to his house 3 days before the incident, at that time, she told him that the accused persons continue to harass her for dowry and money. She also said that probably it is her last visit and she would not be returning again and only 2 days thereafter she died due to burn injuries. The above version is missing in the written report of Ex.-P/3 lodged by him. If the above version of this witness is true, in that case, he would have definitely disclosed this fact to the police at the first instance immediately after the incident when he went to Khairagarh on hearing the news of death of his sister. The above version is missing in the written report of Ex.-P/3 lodged by him. If the above version of this witness is true, in that case, he would have definitely disclosed this fact to the police at the first instance immediately after the incident when he went to Khairagarh on hearing the news of death of his sister. On the contrary, Rajni Makhija, sister of the deceased, who met the deceased on 21st October, 2002 i.e. a day before the incident, has seated on oath that she reached Khairagarh with her parents on 23-10-2002, she has signed the inquest report and her statement was recorded by the police and at that time she did not complain against anyone. 25. The crime was registered on report of Kailash Bajpai, Town Inspector of Khairagarh Police Station on the basis of merg enquiry. However, statements recorded during merg enquiry are not available on record nor the same were produced for perusal of this Court. In these circumstances, we find force in the argument of the defence that statements of near relatives recorded during merg enquiry have been deliberately suppressed as it does not contain any allegations against the Appellants. 26. From the evidence available on record, we find that the deceased visited her parents 2 days before the incident on 20th October, 2002. After hearing the death news of their daughter, the parents went to Khairagarh along with Rajni and her husband. Arjun Das, father of the deceased, is signatory of inquest report, however, the prosecution has not examined the parents of the deceased, who would have been important witnesses to establish the allegations of the prosecution that the deceased was harassed by her husband and other accused persons for dowry and she used to complain about the same in her parental home. In these circumstances, an adverse inference may be drawn against the prosecution for non-examination of the parents of the deceased. 27. Omnibus allegations have been made by Prakashrai, Sulochana and Rajni Makhija and no specific allegation has been made against any particular accused about demand of any particular dowry. Prakashrai and Rajni Makhija have deposed that every thing was alright till 1 -2 year after the marriage. The behaviour in the matrimonial home of her husband and in-laws was alright and harassment started only thereafter. 28. Prakashrai and Rajni Makhija have deposed that every thing was alright till 1 -2 year after the marriage. The behaviour in the matrimonial home of her husband and in-laws was alright and harassment started only thereafter. 28. On close examination of the evidence of the above witnesses, we are of the opinion that the finding of the trial Court that the deceased was continuously harassed and treated with cruelty by the Appellants for dowry since 4 years before the date of the incident is based on improper appreciation of evidence available on record and we are of the view that the prosecution has failed to prove that the deceased was harassed and subjected to cruelty soon before her death by the Appellants. 29. Learned trial Court has held that Laxmi Bai @ Vandana was murdered in her matrimonial home and thereafter her dead body was set on fire. The Appellants were residing in the same house at the time of the incident and Appellant Jitendra gave false information to the parents of the deceased by phone that Laxmi Bai has committed suicide by sell immolation whereas, from the evidence of Dr. Parihar, Autopsy Surgeon, which is also corroborated from the FSL report and the evidence of defence expert, the burn injuries present over the person of the deceased were postmortem in nature. 30. PW-10 Rajesh Agrawal has prepared the inquest (Ex.-P/4) over the person of the deceased in the presence of Arjun Das, father of the deceased, Rajni Makhija, sister of the deceased and other witnesses. In the Panchanama, it is mentioned that no injuries were visible on the body and all the Panchas informed that deceased Vandana Bhavnani closed the door from inside and burnt herself and died. He has seized one uprooted latch lying on the spot on 23-10-2002 vide Ex.-P/9. In the spot map of Ex.-P/l 0, which bears the signatures of Arjun Das, father of the deceased, it is mentioned that point No. 5 is the room by passing through which one can reach to the place of incident. The latch of inside of the door of this room is broken. At S. No. 5 also, it is mentioned that the room where the incident took place is described at point No. 6 and at the time of the incident, the deceased had closed the door (6A) from inside. The latch of inside of the door of this room is broken. At S. No. 5 also, it is mentioned that the room where the incident took place is described at point No. 6 and at the time of the incident, the deceased had closed the door (6A) from inside. Her husband opened both the doors by pushing and latch of the door is broken. This witness has deposed in para-24 that "the door of the room of Vandana Bhavnani was closed from inside" has been written in Ex.-P/l 0 as per information given by her husband. He had also informed that latch of the door was broken because of forcible opening of door. In para-22 of his deposition, this witness has admitted that in the house where Vandana died, other relatives of Prataprai also reside. Whether brothers of Prataprai reside or not he does not know. In para-33 of his deposition, he has stated that he enquired from the persons residing in the neighbourhood, however, he did not record their statements. He has further stated that they expressed their ignorance about the incident, therefore, he did not record their statements. On query from the Court, this witness has reiterated that at the time of incident the door was closed from inside, however, this has been mentioned on the basis of information given by accused Jitendra that he had broken the door by pushing. No other person told that Jitendra had broken the door. On further query by the Court, he has deposed that during investigation, he also learned that at the time of incident the Appellants were present in the house where the incident took place. He has clarified that it was Tuesday and Gumasta madam had come and the shop of Jitendra was closed and, therefore, he is saying that all the 4 accused persons were present at the time of incident in the house where the incident took place. In para-48, he has admitted that he had also taken out photographs of the doors and it is correct to say that two doors were broken to reach the place of incident. It is also correct that one door was locked from inside and the door, from where the dead body of Vandana was found, was also locked from inside. In para-48, he has admitted that he had also taken out photographs of the doors and it is correct to say that two doors were broken to reach the place of incident. It is also correct that one door was locked from inside and the door, from where the dead body of Vandana was found, was also locked from inside. It is also correct that only after breaking the door, it was possible to reach the room where the dead body of Vandana was lying. In para-50, this witness has stated that on 23-10-2002 he learnt that number of persons had gathered immediately after the incident and Horilal in his statement has stated that after the incident he had gone to the place of incident though he has denied that Horilal had also stated in his diary statement that the persons present on the spot were asking to break open the door. 31. PW-5 Horilal has deposed that the Appellants are his neighboured. On the date of incident, when he was returning to his house at about 8 pm, he saw that smoke was coming out from the house of Jitendra whereupon he went to his house. It was dark, as the light of the entire locality was off. The crowd had gathered and they were asking to break the door. In cross-examination, he has deposed that father of Jitendra and his 3-4 brothers reside with their families. Two families reside in the ground floor and two families reside in the first floor. The family of Jitendra reside in the upper portion of the building. There is complete harmony in the family of Jitendra and there is no quarrel. Deceased Vandana never complaint against her in-laws. The door of the house was broken by kicks, at that time he was standing outside the door, however, he did not see the dead body lying on the floor. 32. The trial Court has disbelieved the evidence of Rajesh Agrawal that to have an access to the place of incident where the dead body was lying, it was necessary to break the two doors which were locked from inside, on the ground that these facts were recorded in Ex.-P/lO as told by Jitendra whereas Rajesh Agrawal did not find any mark of breaking on the door. No-one told him at the time of investigation that the door was broken by Jitendra. No-one told him at the time of investigation that the door was broken by Jitendra. The trial Court has also brushed aside the evidence of PW-5 Horilal with an observation that only on the basis of evidence of Horilal and Rajesh Agrawal, it cannot be held that the room where the dead body of the deceased was found was not accessible to anyone on the date of the incident. 33. We have already mentioned in the foregoing paragraphs that in the inquest report of Ex.-P/4 the I.O. has mentioned on the basis of information given by Panch witnesses that the door of the room where the dead body was found, was closed from inside. Latch lying on the floor was seized by the I.O. vide Ex.-P/9. In the spot map prepared in the presence of father of the deceased, it is clearly mentioned that the doors of two rooms which were closed from inside were broken for reaching to the room where the dead body was lying and the room were locked from inside. Horilal (PW-5) is an independent witness. He has also deposed that at the time of incident he saw smoke coming out of the house of Jitendra. He went there and saw that number of people had gathered there and they were saying to break open the door and thereafter Jitendra broke open the door in his presence. 34. In the matter of Javed Masood and Ann v. State of Rajasthan AIR 2010 SC 979 the Hon'ble Supreme Court, referring to paras-30 and 31 of its earlier judgment in the matter of Mukhtiar Ahmed Ansari v. State (NCT of Delhi) AIR 2005 SC 2804 with approval, held that where the prosecution witness does not support the prosecution case and he is not declared hostile, in that case, the defence can rely on the evidence of such witness and it was binding on the prosecution. 35. In the instant case, we find that the prosecution witness Horilal has categorically deposed that the door of the room, where the dead body of the deceased was found, was broke open by Jitendra in his presence. He has also deposed that crowd gathered in front of the house of Jitendra were asking to break open the door. 35. In the instant case, we find that the prosecution witness Horilal has categorically deposed that the door of the room, where the dead body of the deceased was found, was broke open by Jitendra in his presence. He has also deposed that crowd gathered in front of the house of Jitendra were asking to break open the door. Even I.O. Rajesh Agrawal has recorded this fact in the inquest report as well as spot map prepared on the next day of the incident and has observed that it was not possible to have access to the room without breaking open the two doors. There is sufficient evidence available on record to establish that the room of the deceased was closed from inside and Appellant Jitendra and other could enter there only after breaking the same. 36. In the matter of Dalbir Singh v. State of U.P. (2004) 5 SCC 334, the wife and two daughters of the accused died inside a room by sustaining bum injuries. The husband was charged for offence under Section 302 IPC for having committed murders of his wife and two daughters apart from charges under other sections. The High Court acquitted the accused of the charge under Section 302 of the IPC holding that the charge under Section 302 of the IPC was not established, as the accused could not have set his wife and daughters on fire inside the room and then escaped from there, as in that event, he could not have bolted the door of the flat and closed it from inside. This shows that the deceased persons died due to commission of suicide. The finding of the High Court acquitting the accused of the charge under Section 302 of the IPC was upheld by the Supreme Court and it was held that the prosecution has not succeeded in establishing the charge under Section 302 of the IPC against the accused. 37. Autopsy surgeon Dr. P.S. Parihar has deposed that mucous membrane of trachea was pink and carbon particle was absent. Both the lungs were pale and shrunken. No carbon particle seen. Both the chambers of the heart were found empty. Dark brown coloured blood was present on the major artillery. 3rd degree thermal burns all over the body. Charring present. Heat rupture present, 100% in extent and appears to be postmortem in nature. Both the lungs were pale and shrunken. No carbon particle seen. Both the chambers of the heart were found empty. Dark brown coloured blood was present on the major artillery. 3rd degree thermal burns all over the body. Charring present. Heat rupture present, 100% in extent and appears to be postmortem in nature. The doctors further opined that interval between the death and postmortem is 6 to 36 hours. No definite opinion can be given regarding cause of death. The burns present on the body of the deceased are postmortem in nature and no carbon particles are found in the trachea. The thermal burns found on the body of the deceased are postmortem in nature. The viscera of deceased, blood, hairs and clothes are preserved for FSL examination. It was advised that the report of circumstantial evidence, P.M. report and the report of FSL may be sent to Forensic Expert to know the exact cause of death of the deceased. The FSL in its report of Ex.-P/l 5 has opined that carbon particles in trachea is absent. 38. The trial Court, after dealing with the evidence of Dr. Smt. Laxmi Jirani (DW-1) and admission of Rajni Makhija (PW-4) that the deceased was suffering from menstrual disorder and she had consulted the doctors for the same, has rejected this defence of the Appellants that the deceased was mentally perturbed on account of her serious illness and, therefore, she might have committed suicide with an observation that the defence has not examined any doctor from Raipur. who allegedly treated the deceased. 39. Referring to text books on Medico Jurisprudence and Toxicology and relying upon the evidence of autopsy surgeon Dr. Parihar, it has been held that the burn injuries present over the person of the deceased were postmortem in nature. Rejecting the argument of the defence based on text books on medical jurisprudence that shock may also occur from fright before the individual is affected by burns if his heart is weak or diseased, it has been observed that there is no evidence on record that heart of the deceased was weak or diseased. 40. Rejecting the argument of the defence based on text books on medical jurisprudence that shock may also occur from fright before the individual is affected by burns if his heart is weak or diseased, it has been observed that there is no evidence on record that heart of the deceased was weak or diseased. 40. Learned Counsel for the Appellants extensively referring to the medical jurisprudence argued that the absence of line of redness or presence of cherry red coloured blood in the chamber is not conclusive proof of postmortem burn injuries: In some cases where the deceased died as a result of shock occurring from fright before the individual is affected by burns, if the heart is weak or where the body of a victim dying of thermal burns continues to remain exposed to flame and intense heat, some or all of the antemortem burns covering the body of such a victim may exhibit the appearance of postmortem burns. The colour of blood may also change to brown under the influence of heat and it is possible that where the victim is a person of very weak constitution and who dies immediately from shock due to bums, it is possible that line of redness may be absent. 41. Autopsy surgeon Dr. Pariha. has described the injuries of the deceased as postmortem burn injuries. However, in the postmortem report, they did not give any definite opinion with respect to the cause of death of the deceased and advised that for ascertaining the cause of death, their postmortem report, copy of the FSL report and other circumstantial evidence should be forwarded to the forensic expert. He has further deposed that they did not find any external injuries on her person or any sign of struggle. They also did not find any mark of tying on her hands and legs or any injury over her person or ligature mark on her neck. There was no symptom of antemortem violence on her person. He has also admitted that carbon particle would be found in trachea only when the deceased comes into contact with carbon particle while she is alive. He has further deposed that in the situation of shock, chambers of the heart would be empty, lungs would be expanded, spleen and kidney would be pale. These symptoms are not of vasovagal shock. He has also admitted that carbon particle would be found in trachea only when the deceased comes into contact with carbon particle while she is alive. He has further deposed that in the situation of shock, chambers of the heart would be empty, lungs would be expanded, spleen and kidney would be pale. These symptoms are not of vasovagal shock. He has further stated that symptoms of both the chambers empty, pale lungs, kidney and spleen may be found under both the situations i.e. antemortem burn injuries or postmortem burn injuries. He has also admitted that if a person burns for a longer time, in that case, symptoms of antemortem burn injuries may not be found. He has also admitted that if a person is of weak constitution and if he dies at the initial stage of burn due to shock, in that case, symptom of shock would not be found, as in vasovagal shock heart and respiratory system gets paralyzed and death is possible. Reflex cardiac arrest or vasovagal shock is possible if a weak person accidentally or due to self immolation sustains burn injuries. He has stuck to his opinion that they were not able to opine the cause of death because of excessive burns, therefore, they had advised for taking opinion of the forensic expert. 42. The defence has examined Dr. Sunita Dhenge, an independent forensic science expert. After deposing about her qualification and experience in detail, she has deposed that on careful examination of inquest report, postmortem report, spot map & FSL report, she is of the opinion that Vandana Bhavnani died as a result of shock due to burn. She suffered the shock before the influence of burn injuries. 43. The doctors performed autopsy could not ascertain the cause of death and they advised the prosecution agency to forward their postmortem report, report of the FSL and circumstantial evidence collected during investigation to some forensic expert and obtain their opinion. They had also collected blood samples from within body and outside and advised for chemical examination. From perusal of memo of Ex.-P/l3, it appears that only trachea and small bottle containing some liquid was sent to the Director, Gandhi Medical College, Medico Legal Centre, Bhopal for examination. By another memo (Ex.-P/l4), dated 13th November, 2002 addressed to the Director, State FSL, Raipur, other articles seized during investigation have been sent to State FSL, Raipur. From perusal of memo of Ex.-P/l3, it appears that only trachea and small bottle containing some liquid was sent to the Director, Gandhi Medical College, Medico Legal Centre, Bhopal for examination. By another memo (Ex.-P/l4), dated 13th November, 2002 addressed to the Director, State FSL, Raipur, other articles seized during investigation have been sent to State FSL, Raipur. However, report of the FSL of Ex.-P/l 5 is regarding trachea and small bottle containing sample of liquid of the deceased. The report regarding articles forwarded vide Ex.-P/14 is not available on record. 44. Thus, considering the overall evidence available on record such as room of the deceased was closed from inside; the prosecution has failed to adduce any positive evidence regarding the presence of the accused persons at the time of incident in the room where the dead body of the deceased was found in burnt condition; categorical opinion of the autopsy surgeon that cause of death could not be ascertained; absence of FSL report with respect to blood samples of the deceased collected during postmortem and other articles except the report of the FSL regarding absence of carbon particle in trachea; opinion of the autopsy surgeon as well as forensic expert examined by the defence that in case person dies due to shock at the initial stage of burning, symptom over dead body may be of postmortem burn injuries; uncontroverted evidence of Dr. Smt. Laxmi Jirani (DW-1), which is corroborated by the evidence of Rajni Makhija (PW-4), which lends support to the defence of Appellant Jitendra that the deceased was perturbed as she was suffering from abnormal menstrual disorder for the last 1 1/2 months; we are of the opinion that the trial Court was not justified in reaching to the conclusion that the Appellants were present in the house at the time of incident and they committed murder of Vandana and thereafter set her body on fire. 45. The finding of the trial Court that the Appellants were present in the house is based on the evidence of Rajesh Agrawal (PW-10), who has inferred on some extraneous considerations that the shop of Jitendra was closed and, therefore, all the accused persons were present in the house. 45. The finding of the trial Court that the Appellants were present in the house is based on the evidence of Rajesh Agrawal (PW-10), who has inferred on some extraneous considerations that the shop of Jitendra was closed and, therefore, all the accused persons were present in the house. There is uncontroverted evidence available on record that Prataprai was not present in the house and Appellant Jitendra broke open the door of the room in the presence of Horilal where the dead body of the deceased was found. 46. On the basis of aforesaid analysis, we are of the opinion that the trial Court was not justified in convicting the Appellants under Sections 302, 201, 498-A & 304-B of the IPC and Section 4 of the Dowry Prohibition Act and the trial Court ought to have extended benefit of doubt to the accused persons. 47. In the result, the appeal is allowed. Conviction and sentence imposed upon the Appellants under Sections 302, 201, 498-A & 304-B of the IPC and Section 4 of the Dowry Prohibition Act are set aside and they are acquitted of the said charge. Appellants No. 2, 3 and 4 were on bail. On 29-6-2010, non-bailable warrant was directed to be issued against them and in execution thereof Appellant No. 2 Prataprai and Appellant No. 3 Rajesh Bhawnani were arrested and produced before this Court and this Court sent them to jail. Warrant of arrest could not be executed against Appellant No. 4 Pushpa Devi. Thus, the Appellants be set at liberty forthwith unless required to be detained in any other case.