judgement:
minal Appeal No. 443 of 1993.
From the Judgment and Order dated 22.4.92 of the Calcutta High Court in Crl.
Revision No. 800/92.
A.K. Sen, S.C. Ghosh, Rajiv K. Dutta and B.B. Tawakley for the Appellant.
Amlan Ghosh and Ranjan Mukherjee for the Respondents.
The Judgment of the Court was delivered by MOHAN, J.
leave granted.
The appellant herein was, married to second respondent on 16th January, 1990 according to Hindu Rites and Customs.
They lived together for sometime until second respondent left the matrimonial home to reside with her parents in order to prepare for Higher Secondary Examination which commenced on 5.4.90 920 and continued upto 10.5.90.
In the month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant and the family members did not want her to beget a child.
Therefore she was forced to undergo abortion which was refused by the second respondent.
During the stay She was meted out cruetreatment both physically and mentally.
She came back to the matrimonial home during Durga Pooja in the month of October, 1990.
A female child was born on 3.1.91.
She filed a petition under section 125 Cr.
P.C. before the Learned Chief Judicial Magistrate, Alipore in Misc.
Case No. 143 of 1991 both for herself and the child.
By an order dated 14.8.91 which was passed ex parte he awarded a sum of Rs. 300 per mansum to the mother and Rs. 200 to the child.
Against that order, he moved a revision to the High Court.
That revision is pending as 1837 of 199 1.
Thereafter the petitioner filed a Crl.
Case No. 143 of 1991 for blood group test of the second respondent and the child.
In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child.
According to him if that could be established he would not be liable to pay maintenance.
That application was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove the paternity (ii) moreover it is settled law that medical test cannot be conclusive of paternity.
Aggrieved by this order, a revision was preferred before the High Court.
Dismissing the revision it was held that section 112 of the Evidence Act says where during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy.
This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test.
The English law permitting blood test for determining the paternity of legitimacy could not be applied in view of section 112 of the Evidence Act.
Therefore it must be concluded that section 112 read with section 4 of the said Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity.
It is the contention of Mr. Ashok Sen, learned counsel for the appellant that the only way for the father to disprove the paternity is by blood group test.
Having regard to the development of medical jurisprudence to deny that request to the appellant will be unreasonable.
As a matter of fact, in England, this is commonly resorted to as it will leave no room for doubt.
In 1968 (1) All England Reports p. 20 Re. 1 it was held that even without the consent of the guardian ad litem, the court had power to order an infant be subjected to a blood group test.
921 There is no justification for the court below to refuse the same on the ground that section 112 of the Evidence Act would be an obstacle in seeking relief of blood group test.
Before we deal with the arguments, we will examine the law as available in England.
At the beginning of the century scientists established that human blood had certain characteristics which could be genetically transmitted.
The first recognised system was ABO blood group.
The blood group of a child is determined by the parents ' genetic make up but the number of possibilities is such, that it is not possible to prove that certain individuals are the father on the basis of comparing blood groups, only, that they are not the father.
By 1930s other immunological test became available.
As a result the possibility of establishing paternity increased.
An attempt by way of statutory provision to make blood test compulsory in En land failed in 1938.
However, in 1957 the Affiliation Proceedings Act was passed.
Under that Act, it was assumed that a man was the father once a sexual relationship with the mother at the time of conception was proven unless he could show another man had intercourse with her at that time.
Failing the father 's attempt, the mother 's evidence had to be corroborated by facts such as blood test etc.
Under the Act either party could ask for a blood test and either was entitled to refuse to take part, although only the mother can apply for maintenance.
The Family Reforms Act, 1969 conferred powers on the court to direct taking blood test in civil proceedings in paternity cases.
Courts were able to give directions for the use of the blood test and taking blood samples from the child, the mother and any person alleged to be the father.
Since the passing of 1969 Act the general practice has been to use blood tests when paternity is in issue.
However, it is to be stated the court cannot order a person to submit to tests but can draw adverse inferences from a refusal to do so.
Now under the Fan lily Reforms Act, 1987 in keeping with modern thinking on the continuing and shared responsibility of parenthood, 'parentage ' rather than paternity has to be determined before the court.
Fathers as well as mothers can apply for maintenance.
Therefore contests can include mothers denial of paternity.
This Act finally removed the legal aid for corroboration of mother 's statement of paternity.
Two cases may be usefully referred to: Re L Lord Denning M.R. [1968] All England Reports p. 20 stated thus 922 "but they can say positively that a given man cannot be the father, because the blood groups of his and the child are so different." (emphasis supplied).
In B.R.B. vs J.B. [1968] 2 All England Reports 1023 applied this dictum and held as under: "The Country court judge will refer it to a High Court Judge as a matter suitable for ancillary relief, and the High Court Judge can order the blood test.
Likewise, of course, a magistrate 's court has no power to order a blood test against the will of the parties.
The magistrate can only do it by consent of those concerned, namely, the grown ups and the mother on behalf of the child; but, nevertheless, if any of them does not consent, the magistrate can take that refusal into account1 adhere to the view which expressed in Re L. that (6) "If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons,or a custody proceedings) to take his refusalas evidence against him, and may draw an inference there from adverse to him.
This is simple common sense." "The conclusion of the whole matter is that a judge of the High Court has power to order a blood test whenever it is in the best interests of the child.
The judges can be trusted to exercise this discretion wisely.
I would set no limit, condition or bounds to the way in which judges exercise their discretion.
To object of the court always is to find out the truth.
When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires." "Having heard full argument on the case, lam satisfied beyond any reasonable doubt (to use the expression used in rebutting the presumption as to legitimacy) that LORD DENNING, M.R., was right in saying that such an order may be made in any case where the child is made a party to the proceedings and in the opinion of the judge of the High Court it is in the child 's best interests that it should be made.
" 923 As regard United States the law as stated in Forensic Sciences edited by Cyril H. Wecht is as under: Parentage testing is the major (but not the exclusive) involvement of forensic serology in civil cases.
The majority of disputed parentage cases involve disputed paternity, although an occasional disputed maternity, or baby mix up case does arise, and can be solved using the tools of forensic serology described in this chapter.
Blood typing has been used to help resolve paternity cases since the mid 1920 'section According to Latters, there were 3,000 cases tested in Berlin in 1924, and Schiff and Boyd said that the first case went to court in Berlin in 1924.
Ottenberg, in this country published paternity exclusion tables in 192 1, as did Dyke in England in 1922.
It took somewhat longer to satisfy the courts, both in Europe and in country, that parentage exclusions based upon blood grouping were completely valid.
Wiener said that he had obtained an exclusion in a paternity case in this country which reached the courts early in 1933.
In January of 1934, Justice Steinbrink of the New York Supreme Court in Brooklyn ordered that blood tests be performed in a disputed paternity action, using a s precedent a decision by the Italian Supreme Court of Cassation, but his order was reversed upon appeal.
Soon afterward, however, laws were passed in a number of states providing the courts with statutory authority to order blood testing in disputed paternity cases.
Paternity testing has developed somewhat more slowly in the Unitted States than in certain of the European countries, but today the differences in the number of systems employed, and judicial acceptance of the results, are no longer that great.
A number of authorities have recently reviewed the subject of paternity testing in some detail, and in some cases have summarized the results of large number of cases that they have investigated.
Walker points out that failure to exclude a man, even at the 95 percent level of paternity exclusion does not mean that the alleged father is proven to be biologic father, because absolute proof of paternity cannot be established by any known blood test available.
Although this fact is well known and appreciated by workers it), the field of blood grouping and by attorneys active in this area, it is not generally understood by the lay public.
However, blood group 924 serology, using proven genetic marker systems, represents the most accurate scientific information concerning paternity and is so recognised in the United States, as well as in a number of countries abroad.
" In India there is no special statute governing this.
Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made.
In 1951 (1) Madras Law Journal p.58O Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma vs Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test.
The learned judge was of the following view: Section 15 1, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers.
of Courts as expounded by Woodroffe, J., in Hukum Chand Boid vs Kamalan and Singh.
Such powers can only be exercised ex debito justice and not on the mere invocation of parties or on the mere volition of courts.
There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case.
It is said by Mr. Ramakrishna for the respondent before m e that in England this sort of test is resorted to by Courts where the question of non access in connection with an issue of legitimacy arises for consideration.
My attention has been drawn by learned counsel to page 69 of Taylor 's Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus : "In Wilson vs Wilson, Lancet [1942] 1. 570, evidence was given that the husband 's group was OM, that the wife 's was BM and that the child 's was ABN.
The Court held that the husband was not the father of child, and granted a decree for nullity." "It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test." 925 That may be.
But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so.
" The same view was taken by the Kerala High Court in Vasu vs Santha 1975 Kerala Law Times p. 533 as "A special protection is given by the law to the status of legitimacy in India.
The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child.
Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child.
If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his.
The presumption of law of legitimacy of a child will not be lightly repelled.
It will not be allowed to be broken or shaken by a mere balance of probability.
The evidence of non access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive see Morris vs Davies; , The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case.
These rigours are justified by considerations of public policy for there are a variety of reasons why a child 's status is not to be triffled with.
The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England t o protect illegitimate children.
No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father.
But, the legislature alone can change the rigour of the law and not the court.
The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted.
There is an aspect of the matter also.
Before a blood test of a person is ordered his consert is required.
The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent.
Whether even a legislature can compel a blood test is doubtful.
Here no consent is given by any of the respondents.
It is also doubtful whether a guardian ad litem can give this consent.
Therefore, in these circumstances, the learned Munsiff was right in 926 refusing the prayer for a blood test of the appellant and respondents 2 and 3.
The learned Judge is also correct in holding that there was no illegality in refusing a blood test.
The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder vs Bhoopala, AIR 1959 Madras 396, and the earlier decision of the same court in Venkateswarlu vs Subbayya AIR 1951 Madras 910.
Such an adverse inference which has only a very little relevance here will not advance the appellants case to any extent.
He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten.
That is the only proof that is permitted under section II 2 to dislodge the conclusive presumption enjoined by the Section.
" In Hargavind Soni vs Ramdulari AIR 1986 MP at 57 held as: "The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence.
But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal.
" Blood grouping test is a useful test to determine the question of disputed paternity.
It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain invididual as a father of the child.
However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal.
In Raghunath vs Shardabai , it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities.
In Bhartiraj vs Sumesh Sachdeo & Ors., held as: "Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say "Medical Science is able to analyse the blood of individuals 927 into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father.
Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father.
It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity.
When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show.
positively he is not the father, and in some cases the chance is even higher: between two giver men who have had sexual intercourse with.
the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.
The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case.
But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do.
The court exercises protective jurisdiction on behalf of an infant.
In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim.
The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights.
If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer." "The above is the dicta laid down by the various High Courts.
In matters of this kind the court must have regard to section 112 of the Evidence Act.
This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates).
The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it.
The law presumes both that a marriage ceremony is valid, any that every 928 person is legitimate.
Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immoratility.
" It is a rebuttable presumption of law that a child born.
during the lawful wedlock is legitimate, and that access occurred between the parents.
This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probabilities.
In Smt.
Dukhtar Jahan vs Mohammed Faroog ; this court held.
"Section II 2 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundren and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at anytime when he could have been begotten.
This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
" This section requires the party disputing the paternity to prove non access in order to dispel the presumption. "Access" and "non access" mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual cohabitation.
The effect of this section is this: there is a presumption and a very strong one though a reubttable one.
Conclusive proof means as laid down under section 4 of the Evidence Act.
From the above discussion it emerges: (1) that courts in India cannot order blood test as matter of course; 929 (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong primafacie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl.
Chief Judicial Magistrate, Alipore in rejecting the application for blood test.
We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test.
Accordingly Criminal Appeal will stand dismissed.
Cr, M.P.No.
2224/93 in S.L.P.(cr No. 2648/92 filed by Respondent No. 2 will stand allowed.
She is permitted to withdraw the amount without furnishing any Security.
R.P. S.L.P. dismissed.

summary/full:
Respondent No. 2 was married to the appellant.
She went to reside with her parents in order to prepare for Higher Secondary Examination.
In the meantime she conceived.
The appellant and his family members asked her to undergo abortion but she refused, and a child was born to her.
In a petition under section 125, Cr.
P.C. riled by respondent No. 2, against her husband, the wife and the child were granted maintenance.
The appellant, disputing the paternity of the child, riled a criminal miscellaneous application for blood group test (if respondent No. 2 and the child.
It was claimed that if it was established that he was not father of the child he would not be liable to pay the maintenance.
The application was dismissed.
Appellant 's revision application was also rejected by the High Court.
The appellant filed the appeal by special leave.
Dismissing the appeal, this Court 918 HELD: 1.1 Courts is India cannot order blood group test as a matter of course.
Unlike the English law* in India there is no special statute governing this.
Neither the Criminal Procedure Code nor the Evidence Act empowers the court ; to direct such a test, *Affiliation Proceedings Act.
, 1957; Family Reforms Act.
, 1969; Family Reforms Act, 1987.
1.2 Wherever applications are made for blood group test in order to have roving inquiry, the prayer cannot be entertained.
Bhartiraj vs Sumesh Sachdeo & Ors: , approved.
2.1 Section 112 read with s.4 of the Evidence Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity.
It is a rebuttable presumption of lam, that a child born during the lawful wedlock is legitimate, and that access occurred between the parties.
This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.
2.2 There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act.
Vasu vs Santha: [1975] Kerala Law Times 533 and Raghunath vs Shardabai, , referred to.
Morris vs Davies ; cited.
3 The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
Dikhtar Jahan vs Mohammed Faroog.
; , referred to.
4.1 Blood group test is a useful test to determine the question of disputed paternity.
It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child.
4.2 No person can be compelled to give sample of blood for analysis and no adverse inference can he drawn against a person on account of such refusal.
919 Hargovind Soni vs Ramdulari, AIR [1986] M.P. 57, approved.
Vasu vs Santha, [1975] Kerala Law Times 533, Polavarapu Venkeeswarlu vs Polavarapu Subbayya, , referred to.
Subayya Gounder vs Bhoopala, AIR [1959] Madras 396; Venkateswarlu vs Subbayya, AIR [1951] Madras 910; Hukum Chand Boid vs Kamalan and Singh, Cal. 927, cited.
Wilson vs Wilson, Lancet [1942] 1.570; Re L 1968 [1] All England Reports 20; B. R. B. vs J. B., [1968] 2 All Eng.
Reports 1023, referred to Tauylor 's 'Principles and Practice of Medical Jurisprudence (Vol. 2); 'Medical Jurisprudence and Toxicology (8th Edition) by Rai Bahadur Jaising P. Mod, cited.
`Forensic Sciences ' edited by Cyril H. Wecht, referred to.
In the instant case the purpose of the application for blood group test was nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test.
The High Court was right in confirming the order of the court below rejecting the application.


judgement:
Appeal Nos.
2863 65 of 1993.
From the Judgment and Order dated 21.2.91 of the Kerala High Court in C.M.P. No. 2170/90, 596/91, 597/91 in M.F.A. No. 518 of 1981.
WITH Civil Appeal No. 2960 of 1993.
K.K. Venugopal, G. Ramaswamy, M.N. Krishnamani, K.P. Dandapani E.M.S. Anam, P.N. Puri, A.T.M. Sampath, Pravir Choudhary for the Petitioner/ Appellant.
Shanti Bhushan.
Joshph Vellapall vs R.K.Jain, A Mariarputham, for M/s A. Mariarputham and Mrs. Aruna Mathur for Mrs. Aruna Mathur & Co. for the respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
How far could we protect the interests of subscribers who had subscribed to a chit run by a subsidiary company of the appellant ordered to be wound up when allegedly subscriptions were made good by them not merely out of their hard savings but also of sums got by even, pledging and selling the jewelleries and ornaments of their wives, in the fond hope of getting a lumpsum amount on a future date, to meet the expenses of marriages in the family or health hazards of family members and the like, is the issue that really bothered us at the hearing of the appeals.
About 15 years ago the subsidiary company under winding up, diverted the amount of rupees ten crores received by it by way of chit subscriptions to its holding, company (the appellant) resulting in its inability to pay the subscribers, when they became entitled to (yet the prize amounts.
When some of the subscribers approached the High Court and succeeded in getting the subsidiary company wound up, the appellant holding company appeared in Court and prayed for an opportunity to be given to it to revive its subsidiary company.
That prayer was accepted by a Division Bench of The Kerala High Court in the case of Suarshan Chits (India) Ltd., vs G.S. Pilai ILR 1983 vol.
1 Kerala p. 700.
The Division 906 Bench approved the scheme of compromise and arrangement under Sec. 391 of the .
Consequently, it ordered the winding up order to be held in abeyance on condition that the holding company shall execute a security bond to cover subsidiary company 's liability to the extent of a sum of Rs. 10.40 crores owed to its subscribers.
It also directed the holding company to pay off that amount within a period of five years.
Restriction was also placed on alienation of any property by tile holding, company without obtaining prior permission of the Court.
Arrangement was made for managing, affairs of the appellant company as well.
Apart from the Board of Directors an Additional Director was nominated to supervise and keep a watch on the affairs of the company.
Since than the appellant company is run as directed by the High Court but neither the subscribers are paid, as a body of creditors, not the entire amount of rupees ten crores and odd is paid by the appellant to the subsidiary company.
True, that out of nearly one lakh subscribers.
twenty nine thousand and odd subscribers only remain unpaid.
But, that is hardly satisfactory.
Regret is that more than one third of the subscribers remain unpaid even after ten years from the date the High Court ordered the winding up to be in abeyance.
Payment of rupees two crores and odd by the holding company which had the benefit of ten crores and odd rupees for the last 15 years, which amount by any standard is equivalent to fifty crores of rupees of today, we must state, is a poor consolation, for the holding company to claim that all steps to discharge its obligations is taken.
Having noticed in brief, how matters have proceeded, we shall advert to the dispute which has arisen in respect of an offer now made by the holding company to sell 20.79 acres of land for paying the creditors.
Whatever that be, one situation which has been brought about is, its successful attempt in involving, many subscribers who had formed themselves into a creditors association and an owner of a factory adjoining the disputed land, in litigation which has reached this Court more than once.
It is unfortunate that a company which had volunteered to pay ten crores of rupees with in a period of five years has successfully evaded the payment by offering a pittance.
From the date of offer in 1987 six ears have elapsed but no amount worth consideration, appears to have been paid to the subscribers.
We consider it unnecessary to recount in detail the offer made by Ramaswamy Udayar, the appellant in the other appeal, counter offer made by the creditors association, delay in payment by the association, extension of time by this Court for payment by the association, withdrawal of offer by the holding company in the meantime as the High Court had after detailed examination accepted the offer of creditors association for purchase of disputed land and rejection of the claim of Udayar.
Nor do we consider it necessary to deal with rival submission made by learned senior counsel appearing for respective parties, although we heard them at length, as in our opinion that rupees fifty two lakhs and odd the total amount for which the land 907 has to be sold could hardly be sufficient to relieve the agony of the body of subscribers for whose benefit the entire exercise was undertaken by the High Court.
As we have understood the matter, there may be a grain of truth in the allegation that it is Estate Dealers with vested interests who are interfering and in fact the amount paid by the creditors association is of estate dealers.
It may also.
be true that the total membership of the association is not even 5% of the unpaid subscribers.
In the said circumstances and taking into consideration the board consensus reached among learned counsel as to what needs to be done, we decide the two appeals, one filed by the holding company for release of the land and other by Udayar for accepting his bid on the following terms and conditions: (1)The holding company shall deposit with the official Receiver or Assignee concerned a sum equivalent to the deposited sum on which the High Court was pleased to direct sale deed to be executed in favour of the creditors association together with 25% interest minus the interest, if any earned by the deposit made, calculated on the deposited amount, from the date of deposit till 31st July, 1993, within a period of three months from today.
(2) Out of the amount of sale price of the land already deposited by the creditors Association and the interest if any earned thereon plus the sums of money to be deposited by the holding company under the above term and condition (1), a sum equivalent to the amount deposited by creditors Association, together with interest at 25% thereon from the date of deposit upto 31s t July, 1993 shall be refunded to the creditors association in lieu of their claim for disputed land being, given up.
The balance amount shall remain the benefit of general body of creditors of the subsidiary compa (3) The holding company shall pay the entire outstanding de (amounts) payable to the subscribers who were members of creditors association on the date when their claim applications w decided by the Kerala High Court, together with interest there of 12 percent from the date of decision till 31st July, 1993, within same period, namely, three months.
This amount too shall deposited with the receiver for immediate payment to those cre 908 tors subscribers for giving discharge of their claims against the subsidiary company.
(4) In case the above terms and conditions as to deposits to be made by the holding company are complied with.
within the period allowed, for which no extension of time shall be granted, then the disputed land offered for sale by the holding company and purchased by creditor 's associations shall stand released in its holding company 's) favour.
If such deposits are not made, the sale in favour of creditors company shall stand confirmed.
(5) An offer was made by the appellant in Appeal No. 6614 of 1991 that the land being adjacent to its factory he was willing to pay even rupees five lakhs per acre.
Therefore, on release if the land is sold, it shall be sold, as and when such occasion arises, for a price not less than five lakhs per acre.
The amount so realised shall also be deposited by the holding company with the receiver for distribution among general body of creditors of the subsidiary company in discharge of its obligations to pay of the creditors of the subsidiary company.
(6) (a) The receiver shall further take steps to see that the holding company fulfils its obligations and pays the entire balance within a period of one year from 31st August, 1993.
(b) In case of failure to clear the dues of all the subscribers it shall be open to any unpaid subscriber to approach the High Court for recalling the order passed by the High Court in 1983 directing the winding up to be put in abeyance.
(c) It shall also be open to the unpaid subscribers to approach the High Court for th e aforesaid reasons mentioned in clause (b) to take steps to get the amount realised from assets of the holding company.
If such an application is made it shall be disposed of by the High Court expeditiously in accordance with law after hearing, parties concerned.
Both the appeals are decided accordingly.
The parties shall bear their own costs.
R.P Appeals disposed of.

dataset_name: IN-Abs

summary/full:
A subsidiary company of the appellant holding company (C.A. No. 2866 of 1993) diverted to the appellant rupees ten crores received by it by way of chit subscriptions.
It failed to pay the subscribers the prize money.
When some of the subscribers initiated winding up proceedings against the subsidiary company the appellant appeared before the High Court and undertook the liability of the subsidiary company to an extent of a sum of Rs 10.40 Crores to the subscribers.
The High Court approved the scheme of compromise and arrangement under section 391 of the and directed the winding up order to be held in abeyance on the condition that the appellant holding company would pay off the amount or Rs. 10.40 Crores to the subscribers, within five years.
It also restricted alienation (of any property by the holding company.
Without obtaining prior permission (of the Court.
Even ten %,Cars after the order of the High Court, more than one third of the subscribers remained unpaid.
Meanwhile the appellant company took steps to sell 20.79 acres of land to pay the Creditors.
The appellant in C.A.No. 2863 65 (if 1973 made an offer where as the respondent creditors ' association made a counter offer.
The High Court accepted the (offer of Creditors ' association.
Hence the appeals by special leave.
Disposing of the appeals, this Court gave the following 904 Directions : 1.
The holding company shall deposit with the official Receiver fir Assignee concerned a sum equivalent to the deposited sum on which the High Court had directed sale deed to be executed in favour of the creditors association together with 25% interest minus the interest, if any earned by the deposit, made, calculated (in the deposited amount, from the date of deposit till 31st.
July, 1993, within a period of three months.
Out of the amount mentioned in condition (1) above, a sum equivalent to the amount deposited by creditors Association, together with interest at 25% thereon from the date of deposit upto 31st July, 1993 shall be refunded to the creditors association in lieu of their claim for the disputed land being given up.
The balance amount shall remain for the benefit of general body of creditors of the subsidiary company.
Tile holding company shall pay through the receiver the entire outstanding debts payable to the subscribers who were members of the creditors association on the date when their claim applications were decided by the High Court, together with interest thereon at 12 per cent from the date of decision till 31st July, 1993.
In case the above terms and conditions are complied with, within the period allowed then the disputed land offered for sale by the holding company and purchased by creditors ' associations shall stand released in holding company 's favour.
If such deposits are not made, the sale in favour of creditors company shall stand confirmed 5.
In view of the offer made by the appellant in Appeals No. 2863 65 of 1993, the land on its release shall be sold, for a price not less titan five lakhs per acre.
The amount so realised shall also be deposited of the holding company with the receiver for distribution among general body of creditors of the subsidiary, company.
The receiver shall further take steps to see that the holding company fulfils its obligations and pays the entire balance within a period of one year from 31st August, 1993.
In case of failure to clear the dues of all tile subscribers it shall he open to an%.
unpaid subscriber to approach the High Court for recalling the order passed by the High Court for in 1983 direction the winding up to be plot in abeyance, as well as to the steps to get the amount realised front assets of 905 the holding company.
If such an application is made it shall be disposed of by the High Court expeditiously in accordance with law after hearing parties concerned.


judgement:
minal Appeal No. 738 of 1992.
From the Judgment and Order dated 16.11.1992 of the Bombay High Court in Crl.
A. No. 148 of 1989.
A.N. Mulla, Ms. Shefali Khanna and J.M. Khanna for the Appellant.
S.B. Bhasme, S.M. Jadhav and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This is an appeal by the four accused persons against the judgment of the Bombay High Court dated 16th November.
Appellant No. 1 who was accused No. 1 was tried for the offence of having 880 committed the murder of his daughter in law Sangita, wife of appellant No. 2 who was accused No.2, during the night between 14th September, 1984 and 15th September, 1984 at the residential house of the appellants at Murtizapur with common intention and also for having treated her with cruelty on account of dowry amount.
In the alternative the appellants were also charged for the offence of having abetted the deceased Sangita in commission of suicide by subjecting her to cruelty.
Appellant no.3, who was accused No.3, is the wife of accused No.1 and appellant No.4, who was accused No. 4.
is their daughter.
Appellants 1 to 4 are hereinafter called accused Nos. 1 to 4.
The story of the prosecution was as follows: The accused run a printing press at their residence.
Marriage of accused No. 2 was settled with the 5th daughter of Madan lal (PW. 8).
Few days prior to the settlement of the marriage.
marriage of her elder sister was also settled.
As such marriages of both the daughters i.e. Sangita and Hemlata were celebrated at Paratwada on 28th April, 1994.
Talk over the marriage had taken place about a month prior to the marriage and the same was finalised after about 2 or 3 days of such talks.
At the time of finalisation, accused No. 1 demanded Rs. 20,000 by way of hard cash as dowry, besides other articles, add he himself had given such demands in writing vide Ext.
Though agreed, Madan Lal, father of the deceased could not give Rs. 20,000 at the time of marriage.
He also could not give the gold agreed, though he assured to comply with the demands later on getting the crops.
After the marriage, on account of the month of Shrawan, and as per custom, Sangita resided with her parents.
It was during her stay after the marriage that she was found disturbed and sullen.
Though she herself did not give out the reason therefore, but on insistence by the father to know the reason she told him that accused No. 1 had an evil eve on her and that other members of the family used to beat and ill treat her because of the failure on the part of Madan Lai to pay the dowry amount.
Though Madan lal assured that he would come down to Murtizapur and pursued the accused, but he could not visit Murtizapur.
After the month of Shrawan, Sangita returned to Murtizapur but not communication was made about her safe return by the accused persons to her father.
The accused persons had a telephone connection and Madan Lal (PW.8), two three days prior to the date of the incident contacted accused No. 1 on telephone.
Accused No. 1 talked angrily with Madan Lal.
Madan Lal then requested accused No. 1 to call Sangita on telephone.
Sangita came on phone and in answer to his query she broke down and Stated weeping and told Madan lal as to why he did not send Ganesh Chaturthi Neg ', 'Neg ' means a customary offer that the father of the bride has to pay on an auspicious day.
It varies according to financial capacity of the father.
He told 881 Sangita that he had committed it mistake and assured that he would be sending it immediately.
On the next day lie had got drawn a draft of Rs. 101/ on State Bank of India.
74 A is the said draft.
It was thereafter when Madan Lai was on a visit to Amravati that Madan Lal received a message about Sangita having got burnt on 15th September, 1984.
During the night between 14th and 15th September.
1984 at about midnight the accused found Sangita not in her bed and smell of burning.
They found that in the rear side open space Sangita was burning and lying down.
According to the defence the doors were closed from inside and there was no access to the said open space.
Accused No. 1 informed the police about the occurrence that he had seen through the window opening on the )pen space.
Accused No. 1 at about 3.45 a.m. on 15th September, 1994 submitted it report (Ext.82) to the police wherein he had stated that about 2. 10 a.m. in the night Sangita was found to be burnt and died in the bath room.
Mundheh.
the investigating Officer gave instructions to the accused persons not to disturb the situation.
Initially on the report of the accused, accidental death was registered.
PW9 when reached the spot on 15th September.
1984 at about 10.00 a.m. he made spot Panchnama vide ext.63.
He also found a postcard.
half burnt, (Ext. 62) by the side of the dead body.
He thereafter drew inquest panchnama (Ext.64).
PW. 1 Bhanudas acted as a panch.
PW.9 having convinced that it was a case of murder, lodged it report on behalf of the State registering the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
Dr. Lande, PW.3, on 15th September, 1994 at about 5.00 p.m. conducted the post mortem.
The Additional Sessions Judge on the basis of the material filed with the challan.
on 30th September, 1994 trained a charge under Sections 302.499 A and 201 read with Section 34 of the Indian Penal code and thereafter recorded the evidence of PWs.
1 to 9.
Thereafter by an order dated 22nd August, 1988 the trial court framed an additional charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.
The accused persons challenged the framing of the additional charge before the High Court but the challenge was defeated.
The accused persons were accordantly tried.
Their defence through out was a total denial.
It appears that during arguments the Prosecutor did not think it proper to press for the diffence punishable under Section 302 read with Section 34 of the Indian penal Code.
According to the Prosecutor the only case made out was for the offences punishable under Sections 306, 498 A read with Section 34 of the Indian Penal Code.
The trial court endorsed the view of the Public Prosecutor and did not 882 discuss the relevant evidence it all on the charge of Section 302 and recorded a finding of acquittal in that behalf.
He also held that the charge of Section 201 also did not survive.
The learned trial Judge also held that the prosecution hits not been able it) prove that the accused persons with their common intention treated Sangita with cruelty or thereby abetted her to commit suicide.
He accordingly acquired all the accused persons for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.
The State filed all appeal against their order of acquittal and the High Court on appeal castigated the trial judge for having gone merely oil the statement of the public Prosecutor without applying his own mind on the evidence.
The High Court examined the evidence afresh.
The High Court posed a question is to whether the nature of death of Sangita was suicidal or homicidal and ultimately gave a finding that it was a case of homicidal death and found all the accused guilty under Section 302 read With Section 34 and Section 201 read with Section 34.
The accused were also find guilty under Sections 498 A read with Section 34.
For the offence under Section 302 read with Section 34 all of them were sentenced to rigorous imprisonment `for life and different fines.
For the offence under Section 201 read with Section 34 all the accused persons were sentenced to rigorous imprisonment for three years and each of them was fined Rs.1,000/ .
For the offence under Section 498 A read with Section 34 all of them were sentenced to one year rigorous imprisonment and a fine of Rs.2,000.
Learned counsel for the defence, however, submitted before the High Court that the charge under Section 302 read with Section 34 did not survive tit view of the concession made by the Prosecutor and also in view of the framing of the additional charge under Section 306 read with Section 34.
It was also submitted that the framing of the additional charge negated the theory of murder in pith and substance.
The High Court, however negatived this submission and on consideration of the evidence convicted all the accused persons as stated above.
Body of Sangita suffered 100% burn injuries and smell of kerosene was even noticed in the spot panchanama.
The description 1005 burn does not really fully 883 convey the condition of the body.
Asper the inquest report the dead body was lying on its back in the open court yard at the back side of the house of the accused.
Both the legs were partly stiffen.
Both the hands were partly bent and lying at side.
Hairs on the head burnt and even fleshy portion is also burnt at some places.
There was slight hair at some portion of head.
Complete body was burnt and skin on it also peeled up.
Face had became red and black.
Eyes were closed and burnt.
Nose was burnt and blood was cozing from the nose and mouth.
Tongue was slightly protruding out.
Brassier of the left side was totally burnt and right side was partly burnt.
Ash of burnt cloth was visible on stomach.
A partly burnt small piece of the border of saree was lying there.
Some pieces of saree, burnt and sticking each other, were lying on the stomach.
Skin on palm of both hands was peeled up and was appearing reddish.
Skin on the complete body was burnt and peeled up.
On observing the body by turning its upside down, the complete body was burnt from back side.
On observing the private parts of the deceased through Pancha No.3 it was stated that private parts were burnt and there was no injury and to ascertain the actual cause of death, the dead body was sent to the Civil Surgeon, Murtizapur for post mortem.
According to Dr. Lande, who conducted the postmortem, on opening of trachea black particles were found.
He recorded that probable cause of death was 100% burn with bum shock with asphysix.
On the basis of medical evidence the High Court again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the act of a third person.
The High Court felt that the trial court has not even discussed the medical evidence or the inquest report and hastily reached the conclusion that it was a case of suicidal death.
According to the High Court the entire approach of the trial court was thoroughly unsatisfactory and grossly erroneous.
After going through the evidence the High Court gave the following findings: That the deceased could not control her emotional out burst even during the presence of her father in law while talking on telephone.
The deceased was a young girl of 20 years.
A determination to suffer extreme pain in silence could not be a matter of speculation.
"In third degree injuries, as per Dr. Lande, the victim suffers extreme pain.
Such injuries will make the person to give out cries and shouts for help." The shouting and crying of the deceased was not only obvious but inevitable.
Undisputedly, none had heard the cries or shouts of the deceased while she was in flames.
This circumstance alone does not support the probability of suicidal death.
884 The trial court has wrongly read the contents of letter Ext.
62 and its interpretation is highly illegal.
Undisputedly Sangita returned from Paratwada after "Shrawani Mass" just a week before the incident, probably by 7th September, 1984.
She was subjected ' to insinuation and accused used to refer her as "awara", "loafer".
"badmash", She wanted to convey this to her father through post card (Ext.62) which seemingly not delivered.
By this letter she requested her father not to visit Murtizapur.
This letter never reached post off ice and the message could not be passed to Madan Lai, PW. 8.
Before accomplishing her design to convey this message, she could not bring an end to her life.
Sangita could not simply think of committing suicide while in possession of Ext.62.
Sangita at the time of incident, as per the post mortem report.
was having, a pregnancy of 3 4 months and this is also not in tune with the act of commission of suicide.
The Sessions Judge omitted to discuss the complete evidence of Dr. Lande and the post mortem report Ext.50.
As per post mortem report the eye ball and tongue of the deceased were protruding.
Dozing of the blood was found from the nose and mouth.
In case of death due to burning such injuries cannot be sustained.
Sangita was assaulted before she was set on fire.
There might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person.
Relying of the evidence of PW.1, Shivraj, a neighbour who heard a shriek of ' woman as a result of strangulation coming from the house of the accused.
Taking into account tile medical evidence read with the testimony of PW.1, Shivraj, Sangita met with tile homicidal death.
A ball of cloth half burnt was also found by the side of the body.
The ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts.
PW.5, Bhanudas, had also noticed dragging marks in the court yard and the deceased after assault was dragged and kept at the spot.
While in flames Sangita did not make any movement.
She was completely motionless.
The latching of doors of the compound was not accepted as an act of the deceased.
Latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring colour of suicide to the incident.
885 The High Court then posed the question as to who is responsible for homicidal death of Sangita.
It was held that it could not be an act of an individual It was joint venture.
There is no direct evidence.
Undisputedly the payment of Rs.20,000/ was not made nor the tither items mentioned in Ext.
73 were given till the date of incident.
On her second visit, the deceased had disclosed to her father, Madan Lal.
that the members of in laws ' family had beaten and ill treated her for the reason of non fulfillment of dowry and other articles.
A reading of the letter indicates that the accused persons had very serious grievance against Sangita and her parents for non fulfillment of dowry demands.
Recovery of handkerchief at the instance of accused No. 1 in pursuance of a disclosure statement and the seizure thereof vide Ext.69 from a drawer of the table of the office.
The handkerchief was smelling, kerosene oil.
It was concealed at a place which was not normally or ordinarily used for keeping the handkerchief.
This handkerchief was used at the time of the incident.
None of the accused persons made any attempt to reach the spot even though they noticed the death of Sangita.
They merely allowed the body to be burnt.
Accused persons had quoted exact time of death in Ext.82 which means that they were mentally alert and conscious of the happening in the house.
The refusal to disclose the death of Sangita to the chowkidar of the locality, PW.2, Rahadursingh.
The meeting with chowkidar Bahadursingh was falsely denied in the statement under Section 313 of the Code of Criminal Procedure.
Homicidal death occurred by Sangita while she was in their custody.
The incident with its gravity and extent cannot in any manner go unnoticed.
As such the accused persons were duty bound to offer plausible explanation.
Their action was concerted.
well thought out.
well planned.
With the aforesaid findings all the accused persons were found guilty by the High Court and the appellants have come up in appeal before this Court.
This court on application of appellant Nos. 3 and 4 i.e. another in law and sister in law of the deceased, admitted them to be on hail.
Apart from the inferences noticed by the High Court there are certain other features in the post mortem report Ext.
15 which may also be noticed at this state.
It is stated in paragraph 13 of the post mortem report that the whole (if skin of face 886 was burnt and Covered at places with black soot.
Eye ball slightly protruding Tongue was protruding from mouth.
Blood stained discharge from nose and mouth.
In paragraph 17 it is noticed heirs of the scalp, eye lashes, both ears, eyes, whole neck.
whole chest.
whole abdomen suffer from burns.
Buttock and pubic hairs also burnt.
Black soot was present over burnt area of face, chest, abdomen.
In paragraph 19 it is stated Brain & Meninges congested.
In paragraph 20 it is stated Larynx.
Trachea and Bronchi congested, on opening, troches.
black particles seen inside human.
Right lung left lung congested.
Right ventricle of the heart was full whereas left was empty.
In paragraph 21 it is stated liver and gall bladder congested.
pancreas and suprarenals congested.
spleen congested, kidneys congested and bladder empty, i.e. parenchymatous organs show intense venous congestion.
Dr. K.S. Narayan Reddy, M.D. D.C.P., M.I.A.F.M., F.I.M.S.A.,F.A.F.Sc., Professor of Forensic Medicine, Osmania Medical College Hyderabad in his well known treatise THE ESSENTIALS OL FFORENSIC MEDICINE AND TOXICOLOGY.
Sixth Education at page 255 gives descriptions of internal as well as external symptoms of manual strangulation.
At page 255 while dealing with signs of asphyxia.
the learned author observes : "The face may be livid, blotchy and swollen, the eyes wide open, bulging and suffused, the pupils dialated, the tongue swollen, dark cloured and protruded.
Petechial hemorrhages are common into the skin of the eyelids, face, forehead, behind the cars and scalp.
Bloody froth may escape front the mouth and nostrils and there may he bleeding from the nose and cars.
The hands are usually clenched.
The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.
" While internal injuries described little later included as under "The larynx.
trachea and bronchi are congested and contain frothy.
often blood stained mucus.
The lungs are markedly congested and show ecchymoses and larger subaerial hemorrhages.
Dark fluid blood exudes on section.
Silvery looking spots under the pleural surface due to rupture of the air cells which disappear on pricking.
are seen in more than 505 cases.
The parenchymatous organs show intense venous congestion and in young persons ecchymoses are usually seen on the heart and kidneys.
The brain is contested and shows petechial hemorrhages.
The right side of the heart is full of dark fluid blood and the left empty.
Both the cavities are full if the heart stopped during diastole.
" Whereas in burn injuries the learned author at pages 237 238 observes.
"the 887 brain is usually shrunken, firm and yellow to light brown due to cooking.
The dura matter is leathery." (dura matter is meninges of the brain).
If the death has occoured from suffocation.
aspirated blackish coal particles are seen in the nose, mouth and whole of the respiratory track.
Their presence is proof that the victim was alive %,.hen tile fire occurred.
The pleurae are contested or inflamed.
The lungs are usually congested.
may be strunken and rarely anemic.
Visceral congestion is marked in many cases.
The heart is usually filled with clotted blood. 'The adarme;s (glands above kidneys) may he enlarged and congested.
Some of these symptoms or internal and external injuries are common in case of strangulation and burn like face is swollen and distorted, the tongue protruded.
the lungs are usually congested visceral congestions is marked in many cases.
What is to he noticed in the present case is that there are hardly "any cries" as per the defence also by the deceased.
This is not possible even in case of suicide.
Even if the burns ,ire inflicted with suicidal intent tile victim is bound to cry out of pain.
Admittedly there was no cries and, therefore, it was not a Case of suicidal burn but the deceased was put in a condition where she could not cry and yet get burnt by third party.
As is clear from the aforesaid commentary of Dr. K.S. Narayan Reddy that if it was a case of merely burns the blood of the heart would have got clotted.
Even the postmortem report does not say that asphvsix was due to burn.
Coupled with all the internal injuries which occur in the case of strangulation.
are present in this case.
As pointed out by the High Court there is no direct evidence to connect the appellants with the offence of murder and the prosecution entirely rests its case only on circumstantial evidence.
There is a series of decisions of this Court propounding the cardinal principles to be followed in cases in which the evidence is of circumstantial nature.
It is not necessary to repapitulate all those decisions except stating the essential ingredients as noticed by Pandian, J. in the case reported as The State of Uttar Pradesh vs Dr. Ravindra Prakesh J. in the case 2 SC 114 at 121, to prove quilt of an accused person by circumstantial evidence.
They are: (1) The circumstance from which tile conclusion is drawn should be fully proved; (2) the circumstances should he conclusive in nature; 888 (3)all the facts so established should he consistent only with the hypothesis of guilt and inconsistent with innocence: (4)the circumstances should.
to a moral certainty, exclude the possibility of guilt of any person other than the accused.
" Now let us examine the impelling circunistances attending the case and examine whether tile cumulative effect of those circumstances negatives tile innocence of tile appellants and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else.
There is no doubt that when the incident occurred there was no outsider its the house.
The circumstances which ire establislied its having closely linked up with one another may be noticed 1) The motive for the occurrence.
2) The place where the tragic incident occurred was in possession and occupation of the appellants.
3) The occurrence had happened in the wee hours when body else would have had ingress at the place where the incident allegedly occurred.
4) The appellants admit their presence.
The positive features, which occurred, had it been it pure case of burning, there would he evidence of vomiting.
6) The positive opinion of the doctor that the death was due to asphysix as well apart from 100% burns.
7) The deceased was carrying fetus of 3 4 months 8) The extensive use of kerosene as seen from the burn shows that the deceased was practically 889 drenched as sort of a bath with kerosene. 9) Total absence of any shout or cries except one which was heard by way o f strangulation by PW.
1. 10) Blood in heart was not found clotted.
Right ventricle heart was full of blood but left ventricle wits empty.
11) Besides total burning of neck was to destroy evidence of attempted strangulation.
12) In burn brain is usually shrunken and firm whereas in strangulation it is congested.
As noticed by Pandian, J. in the aforesaid decision, opinion of Taylor in Medical Jurisprudence is quoted below.
It reads thus: "Not uncommonly the victim who inhales smoke also vomits and inhales some vomit, presumably due to bouts of coughing, and plugs of regur gitated stomach contents mixed with soot may be found in the smaller bronchi, in the depths of the lungs.
" By the time a person could take a bath of kerosene she is likely to get fainted and would not be in a position thereafter to burn herself.
A total burning, of the face and the neck shows that even at portions where she was not wearing any clothes were not burnt.
It could only be possible if she had poured kerosene on her head and face also.
It is not understood as to how the unposted post card found near the dead body was not burnt when the whole body had got burnt.
It in fact indicates that the planting of the post card was to show that it was a case of suicidal death.
In passes all human probabilities that the appellants have satisfied themselves by watching through the window the burning of daughter in law without any due and cry or without and serious attempt to save her.
We are thus satisfied that it was a case of murder and not suicidal death.
So far as the accomplicity of appellants 1 and 2 are concerned, there is no doubt.
But 890 it is not necessary if appellant Nos. 3 4 i.e. mother in law and sister in law of the deceased have also participated in the murder of the deceased.
For the aforesaid reasons we dismiss the appeal on behalf of appellant.
Nos. 1 and 2 but give benefit of doubt to appellant Nos. 3 and 4 and accept the appeal on their behalf.
They are accordingly acquitted.
The convictions and sentences of appellant Nos. 1 and 2 are upheld.
U. R. Appeal dismissed.

summary/full:
Sangita was married to accused 2 on 28th April, 1984.
In the intervening night of 14115 September 1984, the accused found Sangita burning.
Sangita 's body suffered 100% burns and the smell of kerosene was noticed even in the spot panchnama.
There had been problems relating to dowry, and she had complained of ill treatment and of being beaten because of failure to pay the dowry amount.
The trial judge acquitted accused 1 4 her father in law, husband, mother in law and sister in law respectively.
The High Court examined the evidence a fresh, while castigating the trial judge for having gone merely on the statement of the Public Prosecutor that only a case under Ss. 306, 498 A and 34 was made out.
The High Court Convicted the accused under S.302 r/w 34, S.201 r/w 34 and 498 A r/w 34.
Partly dismissing the appeal, this Court.
HELD: 1.
It was a case of murder and not suicidal death.
It is not possible that there were no 'cries ' from the deceased while she was burning.
This is not possible even in a case of suicide.
Some of the symptoms of internal and external injuries are common in 879 case (if strangulation and burns.
But some symptoms that occur in the case of strangulation, and not in case of burns, are present in this case.
Dr. K.S. Narayan Reddy, The Essentials of Forensic Medicine and Toxicology 6th edn.
p. 55, relied on.
The prosecution rests its case only on circumstantial evidence.
Therefore, it is necessary to examine the impelling circumstances attending the case and examine whether the cumulative effect of those circumstances negatives the innocence of the appellant ,; and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else.
State of U.P. vs Dr. Ravindra prakash Mittal, JT(1992) 2 SC 114 at 121.
applied.
Taylor, Medical jurisprudence, relied on.
On an appreciation of the circumstances which arc established as being closely linked to one another, the complicity of appellants 1 and 2 is not in doubt.
But it is not necessary that appellants 3 and 4 also participated in the murder of the deceased.
They are given the benefit of doubt and accordingly acquitted.