1. The state has filed this appeal since the third learned judge of the High Court to whom the case had been referred under Section 392 of the Criminal Procedure Code, in view of difference of opinion between the two learned judges hearing the criminal appeal, held that the respondent -accused cannot be convicted of murder or for culpable homicide not amounting to murder. The criminal appeal was allowed by the impugned order of the High Court following the opinion given by the third learned judge.
2. The respondent and the deceased were husband and wife. The marriage between them had been solemnised nearly 16 years before the death of the wife. They had three children. There were frequent quarrels between them on account of the respondent's association with another lady who was living in the neighbourhood. On 30th May, 1988 there was a quarrel between husband and wife, she was kicked and given beating by the husband. According to the prosecution the husband lifted her thereafter since she had become unconscious and he carried her to nearby land, doused her with kerosene and set her ablaze. She died due to burns. P.W. 1, the brother of the deceased reported the matter to the police wherein he expressed the opinion that his sister had committed suicide. The case was sought to-be proved against the respondent on the basis of circumstantial evidence. The court of sessions convicted respondent under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment.
3. The appeal of respondent before the High Court was heard by a division bench. The two learned judges found that the respondent throttled the deceased and when she fell unconscious, he carried her to the by lane under the impression that she was dead, doused her with kerosene and set her ablaze. Up to this there was no difference of opinion between the two learned judges. There was, however, difference of opinion regarding the nature of offence committed by the respondent. One of the learned judges was of the view that the respondent had been rightly convicted and sentenced by the trial court. The other learned judge was of the view that the offence committed was only culpable homicide not amounting to murder, therefore, the respondent could be convicted under Section 304, part II of the Indian Penal Code and sentenced to imprisonment for 5 years. Under these circumstances, the case was heard by a third learned judge having been referred to the learned judge under Section 392 of Criminal Procedure Code.
4. In view of the constitution bench decision of this Court in Babu v. State of U.P., the learned judge was free to adopt any view hearing the entire case and was not trammelled by any of the two opinions expressed by the two learned judges. This legal aspect has not been questioned. The learned judge, as noticed earlier, found that the respondent cannot be convicted of murder or for culpable homicide not amounting to murder and he can be convicted only under Section 323 of the Indian Penal Code and sentenced to the maximum term provided therein but he would have already undergone beyond the said term and, therefore, he was directed to be released from jail.
5. The circumstances that have been taken into consideration by the learned judge which indicated that the deceased had committed suicide are these:
"(1) Appellant asked his son on the night, after waking him up, to go and make a search of his mother. (This is spoken to by P.W. 2 even in chief examination). If appellant had killed her it is most improbable that appellant would have woken up his son and solicited his help to find out where she had gone. (2) When appellant came to know of the death of his wife he exhibited signs of utter despair and went up the nearby hillock presumably to commit suicide. (PW 12 said that fact). (3) The deceased could have had suicidal tendencies. (Though the witnesses did not agree with suggestions in the cross-examination that she had some mental problems, it is in evidence that her mother was a mental patient. Perhaps there could have been genetic loading). (4) A kerosene can and a box of matches were found lying near the dead body. This circumstance is more in favour of the theory of suicide. (5) There is a distance of 100 meters from the house to the place, where the dead body was lying. If the deceased had to reach that place after she became unconscious, the accused should have carried her that distance. One cannot reach the road from the house of the accused without climbing down a ladder to climb down from his property to the land). If the appellant had to reach the place with the deceased he had to carry her as well as the kerosene can and climb down the ladder with them. It is difficult to comprehend how such an exercise would have been completed by the accused. (6) Even her Own brother who went to the police station to give first information statement was initially convinced that it was a case of suicide. Hence he gave that version to the police without even expressing any doubt that it would have been homicide.
6. In view of the aforesaid, the learned judge was of the opinion that the circumstances proved by the prosecution to form a complete chain pointing to the guilt of the accused and on the other hand the circumstances were strongly suggestive of exculpating the respondent from the death of the deceased.
7. We have examined the record with the assistance of the learned counsel for the state including the testimony of P.W. 9 Dr. Shirley. None of the injuries were suggestive of the fact that it could result in the deceased falling unconscious. There was no such injury on the neck which could be suggestive of strangulation. According to P.W. 9 injuries 1 to 10 could not have caused unconsciousness. She further deposed that unconsciousness may be due to strangulation, smothering or poisoning. It was not the case of the prosecution that unconsciousness resulted due to smothering or poisoning. There is total absence of evidence suggestive of strangulation.
8. In view of the above, we find no merit in the appeal. It is accordingly dismissed.