Holding

The Supreme Court set aside the convictions for murder, conspiracy and abetment, and convicted the father (A1) under Section 202 IPC for intentional omission to inform, sentencing him to six months' rigorous imprisonment.

Summary

The father (A1) and son (A2) were charged with murder, conspiracy and abetment of the death of A2's wife, who was found dead in their house. The trial court acquitted them for lack of evidence of a conspiracy and of a homicidal death. The High Court convicted them under Sections 302, 201 and 120‑B IPC, sentencing both to life imprisonment. On appeal, the Supreme Court held that neither A1 nor A2 was present at the time of death and that the medical evidence did not establish a homicidal death, so the murder and conspiracy charges could not be sustained. However, the Court found that A1, as head of the family, had knowledge of an unnatural death and deliberately failed to inform the authorities, thereby satisfying the ingredients of Section 202 IPC. Consequently, the murder convictions were set aside, A1 was convicted under Section 202 and sentenced to six months' rigorous imprisonment, and A2 was acquitted.

Issues considered

The prosecution proved the existence of a conspiracy and murder under Sections 302, 201 and 120‑B IPC.
Whether the accused were present at the time of the death and whether the death was homicidal.
Whether Section 202 IPC can be invoked when the principal offence (murder) is not proved.
The interpretation of the word "whoever" in Section 202 IPC – does it include the principal offender?
Whether the head of the family has a legal duty to inform the police of an unnatural death, even if it may be a suicide.

Legislation cited

Code of Criminal Procedure, 1973s. 174
Indian Evidence Act, 1872s. 3
Indian Penal Code, 1860s. 120-B, s. 201, s. 202, s. 302, s. 306, s. 34
Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970s. 2(a)

Subjects

murderconspiracycircumstantial evidenceSection 202 IPComission to informsuicideabetmentappellate jurisdictioncriminal law

Judgment

BHAGWAN SWARUP AND ANR.
A
v.
STATE OF RAJASTHAN

AUGUST 28, 1991 · ··.,....

B [S. RATNAVEL PANDIAN AND K. JAYACHANDRA
REDDY, JJ.]

Penal Code, 186()-..Sections 302, 201 and 120-/J-,Charges-
Conviction by High Court-Modification of sentence by convicting
accused no. 1 u/s. 202. lPC for making illegal omission to inform the
authorities and acquitting the accused of the offences by Supreme Court
c u/s. 2(a) of the Supreme Court (Enlargement of General Appellate
Jurisdiction) Act. 1970.

~upreme Court (Enlargement of General Appellate Jurisdiction)
Act, 1970-Section 2(a)-Appeal-Appreciation of evidence-conspi-
D racy cannot be proved by conjectures and surmises-Absence of evi-
dence to connect accused with the offences-Modification of sentence
by convicting accused no. 1 u/s. 202, lPC. for making illegal omission
to inform the authorities.

Evidence Act, 1872-Section 3--Appreciation of evidence-
E Failure ofP.rosecution to prove guilt of accused-Conviction of accused
no. 1 u/s. 202, /PC for making. illegal omission to inform the
authorities.

Penal Code, 186()-..Section 202-Ingredients to prove by prosecu-
tion indicated.
F
Penal Code, 186()-..Sections 202, 306--Suicide-Whether offence
of abatement punishable-Whether father-in-law has obligation to
inform the authorities the suicide of daughter-in-law.

The appellants-father and son (A 1 and A 2)-were_ tried under
G Sections 302, 201and120-B I.P.C. for causing murder of the wife of A.2.

The deceased was married to A 2 in 1961. Two sons and one
daughter were born to them. Their matrimonial Ufe was not smooth.
There were frequent quarrels. It was in the evidence that the deceased
H was not healthy both physically and mentaUy. She was also admitted in

820
BHAGWAN SWARUP v. STATE OF RAJASTHAN 821

mental hospital once. She used to confine herself to her room and she
appeared to be somewhat mentally deranged.
A

...,,. On 18.3.82 the dead body of the deceased was found in her room
in the house of the accused. At that time admittedly A 2 was not in the
house and he was at Suratgarh. On being informed about the death, A
1 sent for a doctor, who examined the deceased and declared her to be B
dead. Thereafter A 1 informed P.W. 5, the father of the deceased. The
brother of the deceased, P. W. 6 told P. W. 5 that he had seen the dead
body lying in the room and that it was giving rotten smell. P. W. 6
lodged a report before the Police.

The investigation was taken up, held the inquest, examined the
witnesses and sent the dead body for post-mortem. The Doctor P. W. 2, c
who conducted the post-mortem, opined that the death was due to head
injury and pressure in theneck region.

After completion of the investigation, the charge-sheet was laid.
22 witnesses were examined on behalf of the proseeution. The accused D
denied the offences. A 1 stated that he was away from 14.3.1982
onwards. and was at Jodhpur in his daughter's house. In support of his
plea D.W. I, the neighbour of A l's daughter and his grand-daughter,
I, D. W. 2, namely the daughter of A 2 and the deceased were eQmined. A
2 stated that he was at Suratgarh from 11.3.1982 onwards. Beith of
them denied the allegations of the ptosecution.• E
The trial court held that there was no evidence of conspiracy
between the A 1 and A 2 for murdering the deceased and th~ circums-
tances relied upon by the prosecution were hardly sufficient to con-
~·· nect them with the murder and the accused were acquitted by the trial
court. F

The State preferred an appeal before the Division Bench of the
High Court and the High Court convicted them under Section 120-B
and Section 302 read with 34 of the l.P.C. and sentenced each of them
to undergo Imprisonment for life, against which this appeal was prefer-
red under Section 2(a) of the Supreme Court (Enlargement of General G
Appellate Jnrisdiction) Act, 1970•
...
The appellants contended that the High Court acteil ~n prejndice
and suspicion and that there was absolutely no material to prove the
conspiracy and mucbless to connect the two accused in any manner with
the murder. H
822 SUPREME COURT REPORTS (1991] 3 S.C.R.

The respondent snpported the findings of the High Court and also
A
contended that the accused would at least "' liable of having committed
other offences.

Disposing of the appeal by making modification in the sentence,
this Court,
B
HELD: 1. The second accused was not present in the scene-honse,
where the occurrence took place from 11th to 20th March, 1982 and
that the first accnsed was at Jodhpnr in his danghter's honse from
14.3.82 to 17.3.82 and retnrned to Jaipnr on 18.3.82. Therefore, they
were not present in the honse when the deceased died. The Medical
Officer, P. W. 2 could not say definitely as to wbe~er the death bas
c occnrred before four days of his examination and there is absolutely no
evidence either circumstantial or direct to bold that the death took place
on 11.3.82 itself as found by the High Conrt. The evidente of D. W. 2
who is none other than the danghter of the d~ and was very much
in the bonse throughout categoricolly stated that her mother was alive
D on 15th March, also. Apart from D. W. 2 the only other inmate of the
house daring the crucial period was the mother-in-law of the deceased
who was not even charge-sbeeted. The letter EJ:.P-15 written by the
first accnsed does not in any manner incriminate them and the High
Court bas grossly erred in holding that A 1 and A 2 entered into conspi-
racy merely on the basis of conjectures and snrmises drawn from the
E letter. P.Ws. 4, 9 and 10 have not snpported the prosecution case and
the remaining evidence does not in any manner impHcate A 1 and A 2
and the other remaining inmate of the bonse, the mother-in-law of the
deceased, was not even suspected. Therefore having given anxious and
careful consideration to the facts and circumstances of the case it is felt
by the Court that the prosecution has miserably failed to bring home
F the guilt of the appellants. [8J5A-E]

2. Section 202 I.P .C. punishes the illegal omission of those who
under law are bound to give information in respect of an offence which
be is legally bound to give, particularly being the head of the family.
Under this provision it is necessary for the prosecution to prove (1) that
G the accused bad knowledge or reason to beHeve that some offence had
been committed (2) that the accused had intentionally omitted to give
information respecting that offence and (3) that the accused was legally
bound to give that information. [836G-H]

3. A I was at least under an obligation to give information about ·
ff the death of the deceased since the same was unnatnral. From the
BHAGWAN SWARUP v. STATE OF RAJASTHAN 823

medical evidence, it is clear that it was not a natur:il death and conse-
A
quently the death should at least be noted as one of suicide. Even in the
ca>ie of suicide an offence of abetment punishable under Section 306 is
inherent. Therefore even in the case of a suicide there is an obligation on
·the person, who knows or has reason to believe that such a suicidal
death has occured, to give information. [835G-836A]
B
4. In the instant case A I returned tO his house where the dead
body was lying on 18.3.82 and the circumstances clearly go to show that
he had knowledge that the deceased died of an unnatural death. There-
fore he had knowledge or atleast had reason to believe that an offence
had been committed even if, at that stage, he thought that it was only a
suicide. Therefore it was his bounden duty particularly as head of the C
family to inform the authorities. He omitted to do so. On the other
hand, he went about telling that the deceased was still alive and her
condition was serious. But when P. W. 6, the brother of the deceased,
came to the house and enquired, A l told him that the body would be
cremated and he intended to do so without informing the authorities.
· Therefore ·all the ingredients of Section 202 are made out against him D
and he clearly committed the offence punishable under this Section at
that stage. [8388-D]

5. The fact that A I himself was made an accused . in other
offences subsequently does not absolve him of his complicity in respect of
the offence punishable under Section 202 I.P.C. [8380] E

Kalidas Achamma v. The State of.A.P~ S.H.O. Karimnagar, I
Town P.S., (1987] 2 ALT 937, Approved.

Harishchandrasing Sajjansingh Rathod and Another v. State of
Gujarat, (1979] 4 SCC 502, Distinguished. F

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 303 of 1984.

From the Judgment dated 19.5.1984 of the Rajasthan High Court
in D.B. Criminal Appeal No. U9of1983. G

R.K. Jain, RcP. Singh and R.K. Khanna for the Appellants.

Sushi! Kumar and Aruneshwar Gupta for the Respondent.
,
The Judgment of the Court was delivered by H
824 .SUPREME COURT REPORTS [1991] 3 S.C.R.

K. JAYACHANDRA REDDY, J. There are two appellants.
A
They are father and son respectively and they figured as A I and A 2
·before the trial court. They were tried for offences punishable under
Sections 302, 201 and 120-B I.P.C. for causing murder of Madhu Sax-
ena, wife of A 2 and daughter-in-law of A 1, the deceased in the case.
They were acquitted by the trial court. The State preferred an appeal
B before the Division Bench of the High Court and the Division Bench
of the High Coµrt convicted them under Section 120-B and Section 302
read with 34 of the I.P:C. and sentenced eacti of them to midergo
imprisonment for life. They have preferred this appeal under Section
2(a) of the Supreme Court (Enlargement nf General Appellate Juris-
diction) Act. 1970.
c ,The deceased was married to A 2 in the year 1961. Two sons and
one daughter were born to them. A I, father of A 2, was a practising
lawyer after retiring from the Government Service. The matrimonial
life of the deceased and A 2 was not smooth. There were frequent
quarrels. The accused lived in their own house alongwith the
D deceased. It is in the evidence that the deceased was nut healthy both
physically and mentally. She was also admitted in mental hospital once.
She used to confine herself to her room and she appeared to be
somewhat mentally deranged. The daughter of the deceased, who was
examine~ as D.W. 2, aged 13 years was stu.dying in 10th Class and she
was also· living in the same house. On 18.3.82 the dead body of the
E deceased was found in her room in the house of the accused. At that
time admittedly A 2 was not in the house aqd he was at Suratgarh. On
being informed about the death A I sent for Dr. Madan Lal Arora,
who examined the deceased and declared her to be dead. Thereafter A
I informed P. W. 5, Jagmohan Prasad, t.he· father of the deceased.
P. W. 5 went there and enquired. A 1 told P. W. 5 that the deceased be
F cremated at 9 A.M. The brother of the deceased told P.W. 5 that he
has seen ttie dead body lying in the room and that it was giving rotten
smell. P.W. 6 lodged a report before the Police. P.W. 22 took up the
investi11ation, held the inquest, examined the witnesses and sent the
dead body for post-mortem. The Doctor P.W. 2 conducted the post-
mortem. He found that the body was giving rotten smell and the skin
G here and there was peeled off, nruls were loose and the tongue was
found in between the teeth. He found an injury on the head. He also
found that some of the organs were decomposed and noticed greenish-
brown discolouration on the neck. He opined that the death was due to
head injury and pressure in the neck region: He, however, sent the
tissues of the trachea though decomposed and· a piece of neck skin and
also viscera for histopathology and for chemical analysis, but the
BHAGWAN SWARUP v. STATE OF RAJASTHAN [REDDY, J.] 825

pathologist could not give opinion regarding the piece of skin and the
A
tissues of the tri1chea. The pathologist noted t~at the skin was discol-
oured and that the tissues and the mussle · attached to the trachea
showed no abnormality. The Doctor P. W. 2 opined that the head
in jury was cau~d by blunt weapori and that death is. result of neck
injury. The pre~sure on the left and front of the neck was apparent.
After completion of the investigation, the charge-sheet·was laid. 22 B
witnesses were examined on behalf of the prosecJtion. The accused
denied the offences. A 1 stated that he was away from 14.3.1982
onwards and was at Jodhpur in his daughter's house. In support of his
plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A l's daugh-
ter, was examined. He also. examined his grand-daughter D. W. 2,
namely the daughter of A 2 and the deceased. A 2 stated that he was at
Suratgarh from 11.3.1982 onwards. Both of them denied the allega- C
!ions of the prosecution.

The case registered rests on circumstantial evidence. The trial
court held that there was no evidence of conspiracy between the A 1
and A 2 for murdering the deceased. It further held that there is no D
legal proof also that the circumstances relied upon by the prosecution
are hardly sufficient to connect them with the murder. The trial court,
however, severely criticised about the ill-treatment and hard beha-
viour of A 1 and A 2 towards the deceased.

·The High Court, however, took a different view. The High Court E
mainly relied on the evidence regarding the ill-treatment of the
deceased by Al and A 2 and held that the accused had strong motive.
The High Court has also referred to the earlier incidents in some of the
letters. The High Court accepted the medical evidence in toto and
reached the conclusion that the death was homicidal and due to
asphyxia due to head injury and pressure on the neck. Finally, the F
High Court, relJijng on the conduct of the accused after coming to
know about the death of the deceased, reached the ·conclusion that the
two accused conspired and gotthe deceased murdered and accordingly
convicted thein under Sections 302 read with 34 I.P.C. and 120-B
I.P·.C.
G
Shri R.K. Jain, the learned coimsel for the appellants submitted
that the High Court has merely acted on prejudice and suspicion· and
that there is a!Jsolutelv no material to prove the conspiracy and .much-
less to connectthe two accused in any manner with. the murder

The prosecution examined 22 witnesses. P. W. 1 an Assistant H
826 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

A School teacher in Jaipur and related to the deceased deposed that she
attended a dinner in the house of the deceased and A 2 and in the year
1978 when the deceased came to her house shy was having some spots
of beating by sticks on her back and the deceased told PW. l.that she
was beaten by her husband. On 18.3.82 P.W .. l's neighbour told her
that there was a telephone message from A 1 that the deceasd was
B about to die. On that P.W. I and others went to the house of the
deceased. They opened the room from where bad smell was coming
and in that room .they saw the dead b_ody of the deceased which was
decomposed. A 1 who was present there told them that they would
cremate the dead body that night. On that P.W. 5, the husband of
P.W. 1 and the brother of the deceased objected to. P.W. 1 has also
mentioned about other incidents of cruel treatmen't meted out to the
c deceased. P.W. 2 is the Doctor, who conducted the post-mortem and
we shalt advert to his evidence later. P. W. 3 is the elder sister of the
deceased. She only stated that she got the information about the death
of the deceased. P. W. 4 is the ·son of the deceased and A 2. He
deposed that on 11th March, 1982 his father A 2 came with him to the
D bus-stand to see him off. P. W. 4 met the deceased before leaving on
the evening of 11th March, 1982 and talked to her. At·thai time the
condition of the deceased was very weak a.nd she was unhealthy. P. W.
4 also deposed that his father A 2 was to go to Suratgarh by the
evening of 11.3.82. This witness was treated hostile. In the cross-
examination by the defence this-Witness stated that.his sister Gianwati
E who was examined as D.W. 2 told him that she went regularly to the
room of the deceased. to give food from 11.3.82 to 15.3.82 and·that on
16.3.82 D.W. 2 did not meet the deceased' due to headache and on
17th and 18th March the deceased did not respond when D.W. 2 called
her. P.W. 4 further deposed that D.W. 2 also told the same tC> her
grand-mother. P. W. 5 is the father of the deceased. He also deposed
F about the ill-treatment of the deceased by the accused and their
demand for dowry. He further deposed that the neighbour told them
that he received a telephone message from A 1 that the deceased was
about. to die. Thereupon P.W. 5 sent his son P.W. 6 to A 1.'s house.
Later he was told by A 1 who came to his house that the deceased died
. and the Doctor has declared her dead. Thereupon P. W. 5 wanted to
G know the name of the Doctor. Thereupon A 1 told him that the
deceased would be cremated. A little later P. W. 6 also came and told
him that the deceased had died before many days and her dead body
was giving rotten smell. P.W. 6 is brother of the deceased and son of
P.W. 5. He also deposed about the ill-treatment meted out to the·
deceased. He further stated that on 18.3.82 on receiving the informa-
H tion about the serious condition of the deceased he went to house of
BHAGWAN SWARUP v. STATE OF RAJASTHAN (REDDY, J.J 827

the deceased and he foullcl that the deceased hacl ·already died and the · A
A 1 told him that the dead body would b~ cremated, whereupon he
informed hi.s father P.W. 5 and then lodged a report bdore the police.
The police arrived and prepared a panchnama. P. W. 7 is the neighbour
of the accused. He only attested the site plan prepared by the police.
P. W. 8 is a practising Doctor and he deposed that on 18.3.82 Al came
to him at about 5.30. P.M. and told him that his daughter-in-law· B
namely the deceased was in serious condition. Thereupon he went to
the house and saw the deceased. He examined the deceased and
declared her to be dead. P .W. 9 also was examined to speak about the
cruelty but he was treated hostile. P. W. 10 also belongs to the same
locality. He only deposed that the body was emitting foul smell and he
signed the inventory prepared by the police. P.W 11 is a photographer C
who took the photographs of the room and the dead body. P. W. 12 is
Gurubux Saxena who got the telephonic message from A 1 that the
deceased was seriously ill and thereupon he informed P. Ws 1, 5 and 6.
P. W. 13 is the cousin of the deceased. He also deposed about the
cruelty meted out to the deceased. He further deposed that on 18.3.82
the deceased died and he was asked by P:W. 5 to go to the hou•e of the D
deceased. He was informed by A 1 that the body would be cremated.
Thereupon he and P.W. 6 went and gave a report to the police. P.Ws
14 to 21 are the formal official witnesses. Out of them P.Ws 17, 18, 19
and 20 are examined who spoke about the movements of A 2. The sum
and substance of their evidence is that A 2 was posted as expert of
plant protection in Suratgarh and that leave was granted tohim on E
11.3.82. This evidence may not be very much relevant because it is not
the prosecution case that A 2 was present in the house at the time of
the death of the deceased. P.W. 22 is the Sub-Inspector who investi-
gated the case. He deposed that on receipt of the report he went to the
place of occurrence, held the inquest and sent the dead body for post-
mortem. He also speaks the seizure of some l.etters. F

In the examination under Section 313 Cr. P. C. both the accused
stated that they are innocent. A l's case was that he was away at
Jodhpur from 15th March, 1982 onwards and was staying in her daugh-
ter's house and he came to Jaipur only on 18th March, 1982 and then
he was told about the death of the deceased. Thereupon he called the G
. . Doctor P. W. 8 who examined and pronounced the deceased to be
dead. He denied about the allegations of ill-treatment of the deceased.
A 2 stated that he married the deceased in the year 1961 and they were
blessed with two sons and. one daughter. He also stated that he was a
Gazetted Officer in Agriculture Oepartment and he was transferred to
various places and he also took the deceased with him. He further · H
828 SUPREME COURT. REPORTS [1991] 3 s. c. R.

stated that the deceased was sick and unhealthy and was staying at
A
Jaipur. He also stated that his daughter used to give food to the
.deceased. On 11.3.82 he left for Suratgarh and later he came to know
about the death of the deceased. The accused examined D:Ws 1 to 3 on ,.~

their behalf. D.W. 1 is a Doct.or at Jodhpur. He deposed that he knew
A 1 and that he was staying in his daughter's house in Jodhpur from
B 15th March, 1982 to 17th March, 1982. D.W. 2 is the daughter of A 2
and the deceased aged about 13 years. She in general stated that her
mother was sick and unhealthy and used to confine herself to the
room and she used to give food to her. She also stated that she gave ti~
food to the deceased on 15.3.82 ·and t!tat she could not give food on
16.3.82 due t~ he~;own sickness. Then on 17th and 18th March, 1982
her mother did not talk to her,. therefore she returned with the food.
c She also stated that A 1 went to Jodhpur on the evening of 14th March
~

and returned from Jodhpur on 18th March, 1982. On that day they
found that the deceased was not talking and two ladies who came to
meet the deceased, told that there was something wrong. When her
grand·father A l returned from Jodhpur he sent for a Doctor and the
D Doctor after examining pronounced the deceased to be dead. D.W. 2
further stated that the relations between the deceased namely her
mother and grand-mother were not good. In the cross-examination she
affirmed that she fell ill on 16.3.82 after coming from school and
therefore could not give food to her mother. She denied the suggestion ..;
that the body was decomposed even on 16th and 17th March, 1982.
E D.W. 3 is the son of A I and brother of A 2 residing at Jodhpur. He also
deposed that A 1 came to Jodhpur and stayed from 15th onwards upto
17th March, 1982.

From the above resume of evidence it is clear that the case rests
entirely on circumstantial evidence. The dead body was found in the ·k
F house of A 1 and· A 2, where admittedly the deceased was also living
b.ut she used to confine herself to that room where ihe dead body was
found. She was sick and unhealthy and that she was not even commg
out of the room. From the evidence it is also clear that the food was
given to her in the room itself and she was not even going out to
answer the calls of nature. Some of the witnesses, no doubt, have
G deposed that the accused used to ill-treat the deceased. But the main
question is whether A 1 and A 2 conspired, as held by the High Court
and got the murder committed. From the record it is clear and it is also
...
not disputed that A 2 was not in the house and that A 1 also left Jaipur
and was staying at Jodhpur with his daughter upto 17th March, 1982
and came to Jaipur only on 18th March, 1982. Therefore he was also
H not in the house ·at the time of death. There is no other evidence to
BHAGWAN SWARUP v. STATE OF RAJASTHAN [REDDY, J.] 829

show that as to who could have caused the death of the deceased if it is
A
held to be homicidal. The trial court has doubted the prosecution case
that the death was homicidal. The High Court after having elaborately
...,. examined the medical evidence reached the conclusion that it was
homicidal. But even assuming that it was homicidal, there is absolute
paucity of evidence, suggesting even remotely as to who could have
caused the death. Though, in our view, it is not strictly necessary in B
this case to decide the nature of death because even assuming it 'to be
homicidal, the accused A 1andA2 cannot be convicted unless there is
other material to connect t_hem with the crime ·either -directly or indi-
reedy. However,_ we shall first consider the medical evidence regarding
the cause of the death.
'·'1
P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and c
found 10 injuries which were ante-mortem. Many of them were in the
shape of bruises and swellings. He found the dead body as highly
decomposed and had reached an advance_d stage of putrefaction. In his
opinion the death _was due io the in jury on the head and pressure on
.the neck due to asphyxia. He was cross-examined at length. He admit- D
ted tbat since the brain was decomposed and was in semi-liquid condi-
tion no injury therein could be traced. He also admitted.that the swel-
ling of the eye was not due to the injury on the forehead. Coming to
\ the injury on the neck, the Doctor stated that no injury was found on
the bones of wind pipe and that portion also was decomposed. In
further cross-examination he admitted that he did not miike the E
culture of the maggots crawling on the head. He also stated that he
could not say definitely whether the death in the circumstances should
have occurred before four days. He, however, denied the suggestion
that he could not form a definite opinion. As far as this medical evi-
.>- dence is concerned, the trial court also considered the same at length .
The learned Sessions Judge noted the details in the post-mortem F
certificate Ex. P. 1. There he found against the column cause of death,
the Doctor has put only a question mark. It is also noted in the post-
mortem certificate that P. W. 2 sent a part of the neck and viscera for
chemical and histopathological examination. After considering the
whole evidence of the Doctor, the trial court was of the opinion that it
was very difficult to say that the injuries on the head were ante- G
mortem. In nature and at any rate P.W. 2's evidence has not proved
" beyond reasonable doubt that the death of the deceased was due to
in juries causing asphyxia and that the death was homicidal. The High
Court, on the other hand, has alsonoted that the death of the deceased
was 4 to 8 days earlier as shown in the post-mortem certificate. The
learned Judges observed thus: H
830 SUPREME COURT REPORTS I 1991] 3 S.C.R.

A
"It is to tie noticed that Dr. M.R. Goyal, who col)ducted
the post mortem examination, is not a novice but a senior
Medical Jurist of the S.M.S. Hospital. According to him
there was sub-dural hammatoma over occipital region. ·~
Bruises were found on the forehead left side ........... .

B We have carefully examined the reasons given by the
Sessions Judge for holding that the posecution has failed to
prove that it was homicidal death ......... , ......... .In
our considered opinion, all these injuries were anti-mortem
in nature."

The learned Judges thereafter explained away the discrepancies
c between the post-mortem and ihe medical evidence. We may observe
that the learned Judges of the High Court have bestowed considerable
part of the judgment on the aspect of medical evidence and ultimately
held thus:

D "In substance, we are convinced that it was a case of
homicidal death. We cannot accept the finding of the trial
court on this aspect of the case and have got no hesitation
in reversing it and holding that the finding is not based on
just and proper appreciation of the evidence."

E We have also gone through the medical evidence carefully and we may
observe that we are unable to hold that the view taken by the learned
Sessions Judge is altogether unreasonable. However, for the purpose
of this appeal it ma}' not be necessaty for us to go through the details of
the medical evidence. Even accepting that the death was homicidal, we
cannot on that ground alone hold the appellants guilty. The prosecu-
F tion has to, satisfactorily and beyond reasonable doubt, establish that
· the two accused conspired a11d pursuant to that conspiracy, the offence
was committed.

We have already given .a brief resume of the· evidence adduced
on behalf of the prosecution. We have ·noticed that both the accused
G were not in the 'house on the day the occurrence is said to have taken
place even assuming thaMhe same took place on 14.3.82. The evidence
of D. W. 2 who is the only inmate of the house that was examined and
whose evidence cannot be brushed aside establishes that the occur-
rence probably took place on 15th cir 16th March, 1982. It is only on
.18.3.82 that the dead body was discovered and it is only on that day the
H · A 1 came to his house at Jaipur from Jodhpur and A 2 admittedly was
BHAGWAN SWARUP v. STATE OF RAJASTHAN [REDDY, J.] 831
!

away on official duty. The D.W. 2 also speaks to the same. The High A
Court, however, drew some inferences based on the alleged conduct of
the accused and held that the two accused conspired to kill the
~ deceased. In ·the first instance the High Court held that the accused has
a strong motive to get rid of the accused. For this reliance is placed on
the evidence of some witnesses who spoke about the cruel treatment
meted oulto the deceased by the accused. The learned Judges have B
also relied on some letters written by the deceased. P.W. 6, the
.brother of the deceased deposed that the two accused used to be angry
with the deceased and they did not allow him and his family members
to see the deceased. Reliance is placed on the evidence of P.W. 5 who
spoke about the demand of money. The learned Judges of the High
\ Court mainly relied on this evidence to infer that the accused had C
motive to do away with the deceased. The High Court was not pre-
pared to place reliance on the evidence of P.W. 4 and D.W. 2 who did
not support the theory of cruelty. The High Court, after considering
the above evidence, observed as under:

"Now the question is whether in these circumstances D
although there are circumstances of strong motive and. of
cruelty and of strong desire on the part of accused Bhagwan
Swamp and Parmeshwar Swamp to get rid of Madhu, there
is any further evidence of other circumstances, by which it
can be said that no other hypothesis except the guilt of the
accused is possible in the present case." E

Then the learned Judges proceeded to consider the evidence of P. W. 8
and others. P.W. 8 is a local Doctor who deposed that A 1 informed
him in the evening of 18.3.82 that his daughter-in-law was serious. He
went and examined the deceased and pronounced her to be dead.
P. W. 8 also deposed that the body was giving bad smell and it was also F
in a decomposed condition. Then the High Court relied on the evi-
dence of P. W. 12 whn stated that he received a telephonic message
from A 1 stating that his daughter-in-law was at her last breathing and
he must inform P.W. 5, the father. Then the High Court proceeded to
consider some other circumstances which took place from 11th March
onward namely A 2 leaving on official duty. The High Court suspect.ed G
that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2
marking his attendance in the register at Suratgarh was with a view to
create evidence of alibi. Then there is reference to a letter Ex. P. 15
written by A 1 to A 2 on 18.3.82 and according to the learned Judges,
this letter was an effort to show that the deceased was alive even after
11th March and according to learned Judges Ex. P. 15 a letter of A 1 H
832 SUPREME COURT REPORTS [19911 3 S.C.R.

on the alleged death of the deceased, written by him to his son is a
A
significant feature. This letter is dated 18th March, 1982. In that A 1
has simply informed A 2 that the deceased breathed her last and that
Doctor, P.W. 8, pronounced her dead and that on the next day they
are going ahead with cremation. This letter which is on a post-card, is
the most crucial feature, according to the High Court and that its
B contents show that both A 1 and A 2 were guilty-conscious. We think
we need not refer to the further surmises made by the High Court.
Suffice it to say that in the rest of the entire judgment only such
suspicions and surmises have been mentioned or drawn to reach a
conclusion that A 1 and A 2 conspired. At one stage the learned
Judges observed thus:
c "The more and more we read this letter Ex. P. 15 dated
18.3.82 more and more we are convinced that it was a case
of pre-planned, pre-determined conspiracy of committing
murder of Madhu, which was done on 11th March, 1982 by
both accused, who were anxiously waiting the time when
D they could get rid of her. It is also not without significance
that Suratgafh is in Ganganagar District and a far place
from Jaipur and post-card would not reach there at least
before 24 hours as it reached on 20fh March and further
even if telephone message is sent one would take at least 12
to 18 hours to reach this place. The fact that cremation was
E decided for the morning and the information was sent in
the night only goes to show that since the death was a result
of murder, in which both the accused were involved, there
was no occasion to wait for son, who was husband of the ill
fated unfortunate lady Madhu to perform last rite or see
her face at least before she is put on fire. The merciless
+.
F inhuman approach exhibited by this letter"is heart beating,
hair raising and society lacking and consicious shocking and
we are convinced that such a conduct v.·ould not have been
possible but for the fact that the object of conspiracy of
Bhagwan Swarup and Parmeshwar Swarup was achieved by
putting an end to the life of Madhu, which was done on
G 11th and during all this time_, all that Parmeshwar and
Bhagwan Swarup were being were the unsuccessful effort
to conceal the murder of helpless lady and to create a plea
of alibi or pretended the natural death. We are, therefore,
convinced that these circumstances, if taken as a whole,
proves beyond all reasonable doubts that Bhagwan Swamp
H and Parmeshwar Swamp entered into a criminal conspiracy
BHAGWAN SWARUP v. STATE OF RAJASTHAN [REDDY, J.] 833

to commit the murder of Madhu and wich this abode inten-
A
tion, common object to fulfill the object of conspiracy they
committed the murder of Madhu in their house on 11th
March, 1982, by causing 11 injuries on her person after
they had made it sure that the son Prakash Swarup leaves
for A jmer in the morning and then Parmeshwar Swamp
left for Suratgarh in the evening and Bhagwan Swamp ulti- B
mately left for Jodhpur on 14th. These were all pre-
planned pre-determined well calculated steps of the conspi-
racy to commit the murder and then to avoid its detection

.• by these two accused, who had deep rooted parlence and
hatred towards the unfortunate lady Madhu, who was
being treated with cruelty which started in the beginning C
with the demand of dowry but continued later on account
of various other reasons."

We have extracted the main part of the judgment only to show that
how the High Court has acted merely on suspicion. We are unable to
say as to on what basis the High Court could reach the conclusion that D
on 11th March, 1982 itself both A I and A 2 committed the murder of
the deceased and left the' dead body. Such a conclusion should be
based on acceptable evidence. There is absolutely no material that the
deceased was murdered on 11th March, 1982 itself. The medical evi-
dence simply states that the death could have taken place 4 to 8 days
prior to post-mortem. D.W. 2, the daughter is categorical that her E
mother, the deceased, was alive till 16th March, 1982 and that being
the nature of the evidence on record, we are unable to appreciate the
above conclusion of the High Court purely based un suspicion and
surmises. Further, the learned Judges of the High Court have
,.t· mentioned in the above passage that both the accused conspired to
commit the murder of deceased and having conspired they themselves F
committed the murder. In our view there is no evidence worth men-
tioning to establish these offences.

Naturally in a case of this nature, the question that arises from a
layman's point of view is then who else could have committed the
murder in the house itself? Perhaps if A I and A 2 were present in the G
house on the day of homicide then the situation would have been
different and both of them would have been under an obligation to
give an explanation and the absence of a plausible explanation or
giving a false explanation could have been very much incriminating
against them. The same coupled with other circumstances would have
perhaps brought home the guilt to the accused. But the circumstances H

'
834 SUPREME COURT REPORTS I 1991] 3 S.C.R.

are different now. A 1andA2 were away from the house. The medical
A
evidence does not at all support that the murder, assuming it to be one,
could have taken place on 11th March itself as conjectured by the High
Court. If the murder has· taken place some time after 11th March, then ,,..
A 1 and A 2 cannot directly be connected with the murder. That being
so unless conspiracy as such is established, they cannot be held liable.
B Then the other inmates in the house are only the mother-in-law and
the children of the deceased. None of them was suspected and at any
rate no one of them was charge-sheeted or tried. Therefore the ques-
tion of any one of them being held responsible for the death does not
arise. No doubt a grave suspicion does arise namely that some of the
inmates of the house must have been responsible and an accusing
finger can be pointed against A 1andA2 but from 11th March onward
c they were not in the house. D.W. 2's evidence clinches the issue that
the death must have been taken place only after 16th and before 18th ,,
March. It is in this situation the High. Court surmised on mere suspi-
cion that A 1 and A 2 conspired and also committed the murder on
11.3.82 itself. If the murder has been committed on 11th March itself
D the. body would have been highly decomposed by 18th March, 1982
and would have been emitting very bad smell. One cannot imagine
that the other remaining inmates of the house would have simply and
silently suffered in the house without informing anybody. On the other
hand D.W. 2's evidence is different and st•.o categorically stated that
the deceased was alive upto 16th March. That appears to be natural
E and there is no reason whatsoever to doubt the same.

As indicated supra we are inclined to agree with the Sessions
Court that the medical evidence does not establish the death to be one
of homicidal. At any rate there is a grave doubt in this regard. The
evidence on record clearly shows that the deceased was not mentalJy
F sound. The fact that she was no.t coming out of the room and used the
same for answering the calls of natute also woula show that there was'
something abnormal about her and she confined her movements to the
four corners of the room. 15th March, 1982 was the last day, when
D.W. 2 served food to the deceased. Thereafter she did not go inside
the room and on 18th March, 1982 the dead body was discovered. The
G evidence of P.W. 2, the Doctor, also shows that no brain injury could
be traced and he also did not find any injury on the bones of wind pipe.
In view of these and other admissions the trial court rightly felt that
there was a reasonable doubt about the cause of death also and accord-
ingly aa1uitted the accused.

H Frnm the above discussion the following important points
'
BHAGWAN SWARUP v. STATE OF RAJASTHAN [REDDY, J.] 835

emerge; It is an undisputed case that the second accused was not
A
present in the scene house whece the occurrence took place from I Ith
to 20th March, 1982 and that the first accused was at Jodhpur in his
daughter's house from 14.3.82 to 17.3.82 and returned to Jaipur on
18.3.82. Therefore they were not present in the house when the
deceased died. The Medical Officer, P.W. 2 could not say definitely as
to whether the death has occurred before four days of his examination B
and there is absolutely no evidence either circumstantial or direct to
hold that the death took place on ll.3.S2 itself as found by the High
Court. The evidence ofD.W. 2 who is none otherthan the daughterof
the deceased and was very much i!l the house throughout categorically
stated that her mother was alive on 15th March also. Aparrfrom 0.W.
2 the only other inmate of the house during the crucial period was the C
mother-in-law of the deceased who was not even charge-sheeted. The
letter Ex. P-15 written by the first accused does not in any manner
incriminate them and the High Court has grossly erred in holding that
A 1 and A 2 entered into conspiracy merely on the basis of conjectures
and surmises drawn from the letter. P.Ws 4, 9 and 10 have not sup-
ported the prosecution case and the remaining evidence does not in D
any manner implicate A 1 and A 2 and the other remaining inmate of
the house, the mother-in-law of the deceased, was not even suspected.
\_ Therefore having given our anxious and careful consideration to the
facts and circumstances of the case we feel that the prosecution has
miserably failed to bring home the guilt of the appellants and conse-
quently we are inclined to allow the appeal. E

The accused were tried for offences punishable under Sections
302 read with Section 34, 201 and 120-B I.P.C. only and in our view
the trial. court rightly held that none of these charges were proved
against them.
F
The learned counsel for the respondent State of Rajasthan, how-
ever, submitted that the accused would atleast be liable of having
committed other offences. It may be noted that the question w!.ether
they would be lial:)le under Section 498-A or 304-B does not arise for
consideration inasmuch as these provisions were not on the statute on
the day of occurrence. However, A 1 was atleast under an obligation G
to give information about the death of the deceased since the same was
unnatural. Assuming that the prosecution has not positively proved
that the death was homicidal yet from the medical evidence it is clear
that it was not a natural death and consequently the death should
atleast be noted as one of suicide. Even in the case of suicide an
offence of abetment punishable under Section 306 is inherent. There- H
836 SUPREME COURT REPORTS [1991] 3 S.C.R.

A
fore, even in the case of a suicide there is an obligation on the person,
who knows or has reason to believe that such a .suicidal death has
occured, to give information. Jn Kalidas Achamma v. The State of
A.P., S.H.O. Karimnagar. I Town P.S., [1987] 2 ALT 937 it was
observed as under:

B "Jn the case of every suicide abetment is inh<•rent. Whether
ultimately it is proved or not, it is a different aspect. Abet-
ment of suicide is an offence punishable under Section. 306
J.P.C. and therefore whenever a case of suicide is there,
the body cannot be disposed of without informing the
Police and further as provided under Section 174 Cr. P.C.
the Police have to hold an inquest since it is an unnatural
c death." '

Jn the instant case A l, who reached his house on 18.3.82 knowing
fully well that the deceased had already died, informed P. W. 8 that the
deceased was in a serious condition. Likewise he informed P.W.12 on
D telephone without disclosing that the deceased was already dead.
However, when P.W. 6, the brother of the deceased, came to the
house where the dead body was lying, A 1 told him that the body
would be cremated. To the same effect is the evidence of P.W.13.
a
P.W. 6, the brother of the deceased, on his own went and gave report ~
to the police. It can thus be seen that A 1 intentionally omitted to give
E the information in respect of the death of the deceased which he was
legally bound to give. Section 202. J.P.C. is in the following terms:

"202. Intentional omission to give information of offence
by person bound to inform-Whoever, knowing or having
reason to believe that an offence has been committed,
F intentionally omits to give any information respecting that
offence which he is legally bound to give, shall be punished
with imprisonment of either description for a term which
may extend to six months, or with fine, or with both."

This Section punishes the illegal omission of those who under law are
G bound to give information in respect of an offonce which he is legally
bound to give particularly being the head of the family. Under this
provision it is necessary for the prosecution to prove ( 1) that the
accused had knowledge or reason to believe that some offence had
been committed (2) that the accused had intentionally omitted to give
information respecting that offence and (3) that the accused was
H legally bound to give that information. Shri R.K. Jain, however, relied
BHAGWAN SWARUP v. STATE OF RAJASTHAN (REDDY, J.] 837

on a judgment of this Court in Harishchandrasing Sajjansinh Rathod
p
and Another v. State of Gujarat, [ 1979) 4 SCC 502 and contended that
the word "Whoever" occurring in the opening part of the Section
._,...- refers to a person other then the offender and has no application to the
person who is alleged to have committed the principal offence. In that
case the accused were tried for offences punishable under Sections 331
and 304 read with Section 34 1.P.C. in respect of the death of the B
deceased and were acquitted .. On appeal by the State the High Court,
however, convicted them under Section 202 1.P.C. A Bench of this
Court while reversing the order of High Court observed thus:

'· "We have gone through the entire evidence bearing on the
.....,. aforesaid offence under Section 202 but have not been able
c
to discern anything therein which may go to establish. the
aforesaid ingredients of the offence under Section 202 of
the Penal Code. The offence in respect of which the appel-
lants were indicted viz. having intentionally omitted to give
information respecting an offence which he is legally bound
to give not having been established, the appellants could D
not have been convicted under Section 202 of the Penal
Code. It is well settled that in a prosecution under Section
202 of the Penal Code, it is necessary for the prosecution to
\ establish the main offence before making a person· liable
under this section. The offence under Section 304 (Part II)
and the one under Section 331 of the Penal Code not E
having been established on account of several infirmities it
is difficult to sustain the conviction of the appellants under
Section 202 of the Penal Code. The High Court has also
missed to notice that the word 'whoever' occurring at the
.~· opening part of Section 202 of the Penal Code refers to a
person other than the offender and has no application to F
the person who is alleged to have committed the principal
offence. This is so because there is no law which casts a
duty on a criminal to give information which would incrimi-
nate himself. That apart the aforementioned ingredients of
the offence under Section 202 of the Penal Code do not
appear to have been made out against the prosecution. G
There is not an iota of evidence to show that the appellants
knew or had reason to believe that the aforesaid main
offences had been committed. "
(emphasis supplied)

From these observations it is clear that there was ·no evidence to show H
838 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

that the accused therein knew or had reason to believe that the said
A
offences have been committed and on the other hand they were made
principal offenders. In such a situation the ingredients oi Section 202
can not be said to have been made out. It is in this context that the ~-

meaning of the word "whoever" has been considered. But in the
instant case A 1 returned to his house where the dead body was lying
B on 18.3.82 and the circumstances clearly go to show that he had
knowledge that the deceased died of an unnatural death. Therefore he
had knowledge or atleast had reason to believe that an offence had
been committed even if, at that stage, he thought that it was only a
suicide. Therefore it was his bounden duty particularly as head of the
__,
family to inform the authorities. He omitted to do so. On the other
hand, he went about telling that the deceased was still alive and her
c condition was serious. But when P.W. 6, the brother of the deceased,
··~

came to the house and enquired, A 1 told him that the body would be
cremated and he intended to do so without informing the authorities.
Therefore all the ingredients of Section 202 are made .out against him
afid he clearly committed the offence· punishable under this Section at
D that stage. The fact that he himself was made an accused in other
offences subsequently does not absolve him of his complicity in respect
of the offence punishable under Section 202 I.P.C. So far A 2 is con-
cerned, he came to the house only after the investigation commenced.
Therefore his case stands on a different footing. In the result the
convictions and sentences awarded against A 1 and A 2 are set aside.
E A 1, however, is convicted under Section 202 I.P.C. and sentenced to
undergo six months' R.I. The appeal is disposed of accordingly.

V.P.R. Appeal disposed of.

4

•