IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 259-DB of 2003 DATE OF DECISION : 30.03.2010 Deepak Sharma and others .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Baldev Singh, Senior Advocate, with Mr. Deepinder Singh, Advocate, for the appellants. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. Three accused, namely Deepak Sharma, Ravinder Kumar Sharma and Sudesh Sharma (hereinafter referred to as A-1, A-2 and A-3, respectively), husband, father-in-law and mother-in-law of deceased Anita, directed this appeal against the judgment and order dated 27.1.2003, passed by the court of Additional Sessions Judge, Amritsar, whereby they were convicted and sentenced to imprisonment of life and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for three months each under Section 302 read with Section 34 IPC. During the pendency of appeal,on 10.3.2006, when A-2 was on bail, Crl. A. No. 259-DB of 2003 -2- he died due to cancer. A death certificate qua his death has been placed on record by counsel for the appellants. A-1 is in custody, whereas A-3 is on bail. 2. As per the prosecution version, deceased Anita was married to A-1 on 4.5.1998. After the marriage, the couple along with the parents of A- 1 (i.e. A-2 and A-3) were residing in Kangra Colony, Amritsar. One son was born to the deceased on 27.7.1999. On 31.8.2000, Ramesh Dutt (PW.7), father of the deceased, who was working in a Spinning Mill at Amritsar, received a telephone from in-laws of his daughter Anita that his daughter has died. He immediately went to Kangra Colony, Amritsar. He reached there at about 12.30 PM, where his sister's husband Jagdish Raj and son Gulshan Kumar and many other residents of the Mohalla were also present. The dead body of his daughter was lying on the bed. He suspected that his daughter died either by consuming poison or by strangulation. In the meanwhile, the police also reached there and recorded his statement (Ex.PI), wherein the complainant Ramesh Dutt stated that his daughter was being harassed by his son-in-law and his parents on account of bringing money from him. For several times, the accused sent his daughter to him after giving beatings. He further stated that he used to pay some money to his daughter in this regard. About 8/9 months prior to the day of occurrence, the deceased gave birth to a son. On the day of `Rakhi', his daughter was sent to his house by the accused after giving beatings. On the next day, he along with his son Gulshan Kumar and his brother-in-law (sister's husband) Jagdish Raj went to the house of the accused and paid Rs. 10,000/- to A-1 Crl. A. No. 259-DB of 2003 -3- and A-3 and requested them that in future, his daughter may not be harassed. Thereafter, on the day of occurrence, he received information on telephone about the death of his daughter. 3. On the basis of the above said statement, the formal FIR (Ex.PD) under Section 304-B/34 IPC was registered by the police on 31.8.2000. The inquest report (Ex.PJ) was prepared and in column No.10, it was mentioned that marks of injury were present on the neck. The apparent cause of death was recorded as strangulation after consuming poisonous substance. In column No. 21, it was reported that the deceased committed suicide. From the spot, the police lifted a Dupatta, which was taken into possession vide recovery memo (Ex.PA). On the same day, the accused were arrested. 4. On 1.9.2000, Dr. Gurmanjit Rai (PW.4) along with Dr. Amajit Singh and Dr. Gaurav Sharma, conducted the post mortem on the dead body of the deceased. While conducting the post mortem of the body of the deceased, the Doctors noticed that rigor mortis were present all over the body. Post mortem staining were present on back, sparing areas of contact. Subconjuctival haemorrhage was present on the left eye. Blood stained discharged and froth was coming out of the nostrils. Fical matter was present in the `salwar'. Eyes and mouth were found closed. Old healed vertical scar of caesar section was present on the abdomen. They found the following injuries on the person of the deceased : 1. Ligature mark 29 cms long reddish brown ligature mark Crl. A. No. 259-DB of 2003 -4- and 1 cm to 1.5 cm in width was present at the level of thyroid cartilage on the neck, extending from 12 cms below ear lobule and back of head on the left side upto front of neck. It was horizontally placed upto the right side of neck at the level of mandible. Ligature was faint in colour on right side. Margins of the mark were found bruised and tilling of skin was present on the left side of the neck. On dissection of injury No.1 on the neck, infiltration of blood was present on both sides of neck in the soft tissues and in the vessels of neck. The vessels were found having laceration and clotted blood was present underneath the laceration. Trachea was found congested and contained froth. 2. Lacerated wound .07 x 0.5 cms was present on the right side of lower lip. Clotted blood was present. On dissection chest and abdomen and skull, internal organ were found congested and stomach was having 50 CC fluid and sub nicosal haemorrhage was present. All the injuries were found ante mortem in nature. The probable time that elapsed between injuries and death was within about 2 minutes and between death and post mortem was about 12 to 24 hours. The viscera of the deceased was sent to Chemical Examiner for analysis. However, as per the report of the Chemical Examiner (Ex.PF), no poison was detected. According to the opinion of the Doctors, the cause of death in this case was asphyxia as a result of ligature strangulation, which was sufficient to cause death in the ordinary course of nature. Crl. A. No. 259-DB of 2003 -5- 5. After completion of investigation, the challan was filed against all the accused for the offence under Section 304-B/34 IPC, for committing the offence of dowry death of Anita. But lateron, a criminal complaint was filed by the father of the deceased against all the accused, alleging therein that his daughter was murdered by all the three accused by strangulation. According to the complainant, one Vinod Kumar (who later on was examined as PW.10 during trial) had seen the occurrence, and according to him, the accused had murdered the deceased by strangulating her. The complainant has further relied upon the statement of one Ramesh Kumar, before whom the accused jointly had made extra judicial confession with regard to the commission of offence. On the said complaint, all the accused were summoned to face trial under Section 302/34 IPC for committing the offence of murder of Anita. Thereafter, the police case as well as the complaint case were clubbed and the accused were tried for the offence under Section 304-B IPC. 6. In support of its case, the prosecution examined 13 witnesses, out of whom PW.4 Dr. Gurmanjit Rai, proved the Post Mortem Report (Ex.PE) of the deceased. PW.7 Ramesh Dutt (the complainant) PW.9 Gulshan Sharma (brother of the deceased) PW.10 Vinod Kumar, the alleged eye witness, who had seen the occurrence, PW.11 Jagdish Raj (the sister's husband of the complainant), PW.12 Kuldip Sharma, SI, the Investigating Officer of the case and PW.13 Ramesh Kumar, the witness before whom the alleged extra judicial confession was made by the accused, are the material Crl. A. No. 259-DB of 2003 -6- witnesses, who supported the case of prosecution. Rest of the witnesses are formal in nature. 7. In their statements under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them. A-1 stated that his wife used to doubt his character. She had an illusion that he was having an illicit relation with some other woman. For this reason, she used to have strained relations with him and whenever he remained away from the house in connection with his business for a day or two, she used to suspect that he had gone to visit that woman. On the night of the alleged occurrence, he was away from the house in connection with his business. Out of jealousy, the deceased thinking that he had gone to meet his girl friend, committed suicide. A-1 further stated that they had never demanded any dowry nor maltreated the deceased on that account. He has been falsely implicated in the case by the complainant on account of suspicion. The similar stand was taken by A-2 and A-3. 8. The trial court disbelieved the evidence of extra judicial confession led by the prosecution, for various reasons, including that a joint confession made by the accused is not admissible. However, while relying upon the medical evidence which indicates that the deceased has died due to strangulation, which was not suicidal but homicidal, and further keeping in view the conduct of the accused and the motive, as well as while relying upon the statement of PW.10 Vinod Kumar, who saw the accused coming out of the room immediately after the occurrence, the trial court has Crl. A. No. 259-DB of 2003 -7- convicted all the accused for the offence under Section 302 read with Section 34 IPC, while making the following observations : “28. Therefore, on the basis of medical evidence, circumstantial evidence, conduct of the accused and the motive and the statement of PW10 who saw the accused coming out of the room immediately after the occurrence shows that it is a case of homicidal and not suicidal as pleaded by the accused. 29. Now it is to be seen whether all the accused are responsible for the murder of the deceased. In the statement Ex.P1, it has been alleged that Deepak Sharma alongwith his parents was compelling the deceased to bring more amount from her parents. Therefore, Deepak Sharma alongwith his parents were involved for the mal-treatment of the deceased and there is no explanation on the part of the accused Ravinder Kumar Sharma and Sudesh Sharma that it was only Deepak Sharma accused who was harassing the deceased and they were not party to it. In the suggestion put to the witnesses and in the statements u/s 313 Cr.P.C they are silent on that account. Rather, their subsequent conduct after the occurrence of absconding from the place of occurrence indicates that they were party to it and once it is held that it is a case of homicidal and in the absence of any explanation from accused Ravinder Kumar Sharma and Mrs. Sudesh Sharma, how the occurrence took place, they will also be held guilty alongwith Deepak Sharma husband of the deceased. Ld. Addl. PP for the State has relied upon the judgment reported in 1994 Supreme Court Cases 601 (supra). In that case, deceased died in the presence of 2 persons in a house bolted from inside preventing the entry of anyone else at the time of death and the death proved to be homicidal. Prosecution not leading evidence as to who actually Crl. A. No. 259-DB of 2003 -8- smothered the deceased. It was held in the circumstances that both the accused are liable to be convicted u/s 302 read with Section 34 IPC. In the present case, the deceased was done to death by the accused persons at their house and the accused are also silent how the occurrence took place. Therefore, in the absence of any explanation from the side of the accused, all the accused will be held guilty u/s 302 read with Section 34 IPC, although there is no evidence of the prosecution who from the accused had actually caused the death of Anita.” 9. Learned counsel for the appellants argued that in the instant case, the trial court has committed grave illegality while convicting all the three accused under Section 302 read with Section 34 IPC, without there being any legal evidence against them. According to the learned counsel, in the instant case, the prosecution has failed to lead sufficient evidence, which clearly establish that all the accused have caused death of the deceased by strangulation. The evidence of extra judicial confession led by the prosecution i.e. the testimony of PW.13 Ramesh Kumar has rightly been discarded by the trial court being not reliable at all. According to this witness, on 31.8.2000, immediately after the occurrence, all the three accused came to him at his house at about 12/12.50 noon and jointly confessed that they have committed the murder of Anita. According to the said confession, A-2 and A-3 caught hold the hands of Anita and A-1 strangulated her with a telephone wire. This witness further stated that immediately after the said extra judicial confession made by all the accused, he went to the house of the complainant, but the complainant party had Crl. A. No. 259-DB of 2003 -9- already left their house and this witness followed them to the house of the accused, where he told about the aforesaid extra judicial confession to the complainant as well as to the police. Learned counsel argued that neither the complainant Ramesh Dutt (PW.7) nor Kuldip Sharma, SI (PW.12), the Investigating Officer of the case, state even a word in their statements in the court that PW.13 Ramesh Kumar had told them about the extra judicial confession. On these accounts, according to the learned counsel, the trial court has rightly not relied upon the extra judicial confession. Learned counsel argued that except the said evidence, there is no other evidence, which establish that all the accused had participated in the act of committing strangulation of the deceased. The testimony of PW.10 Vinod Kumar, who was added by the complainant lateron at the time of filing of the private complaint, is wholly unreliable. Learned counsel further argued that even according to this witness, he had not seen the accused while strangulating the deceased. When after hearing the voice of a lady, he went inside the house, he saw through a window that body of the deceased was lying on the bed, and at that time, all the accused were coming outside the room. Therefore, from the testimony of this witness, which is not reliable at all, it cannot be held that all the three accused have participated in the act of strangulation of the deceased. Learned counsel further argued that there is absolutely no evidence on the record that all the accused were having common intention to cause death or that with the said common intention, one of them has strangulated the deceased. Learned counsel argued that Crl. A. No. 259-DB of 2003 -10- even if the statements of PW.7 Ramesh Dutt, PW.9 Gulshan Sharma and PW.11 Jagdish Raj with regard to the harassment of the deceased on account of demand of money, soon before the death of the deceased, are believed, and further it is taken that the deceased has died an un-natural death within seven years of the marriage, even then only the husband could have been convicted for the offence under Section 304-B IPC, as from the statements of the aforesaid three witnesses, the allegation of harassment and demand of money is not being established against the father-in-law and the mother-in-law. Therefore, conviction of all the three accused under Section 302 read with Section 34 IPC is not sustainable at all. 10. On the other hand, learned counsel for the respondent-State argued that the prosecution has fully proved its case against the accused and there is no illegality or impropriety in the judgment of conviction and the order of sentence passed by the trial court. 11. We have considered the submissions made by learned counsel for the parties and have perused the record of the case. 12. The first issue, which is to be determined in this appeal is about the cause of death of deceased Anita i.e. whether her death was homicidal, as alleged by the prosecution, or suicidal, as claimed by the accused. As per the evidence available on record, it has been established that on 31.8.2000, the deceased Anita was lying dead on bed in her matrimonial house. At the time of the spot inspection, vide recovery memo Ex.PA, the police took into possession a Dupatta, which was lying near the dead body of the deceased. Crl. A. No. 259-DB of 2003 -11- At the time of conducting the inquest proceedings, marks of injury were noticed on the neck of the deceased and in the inquest report (Ex.PJ), the apparent cause of death was recorded as strangulation after consuming poisonous substance. In column No. 21, it was reported that the deceased had committed suicide. On the next day i.e. on 1.9.2000, Dr. Gurmanjit Rai (PW.4) along with two other Doctors conducted the post mortem on the body of the deceased. During the post mortem, they found the following injury on the body of the deceased, which is very much relevant for determining the aforesaid issue : “1. Ligature mark 29 cms long reddish brown ligature mark and 1 cm to 1.5 cm in width was present at the level of thyroid cartilage on the neck, extending from 12 cms below ear lobule and back of head on the left side upto front of neck. It was horizontally placed upto the right side of neck at the level of mandible. Ligature was faint in colour on right side. Margins of the mark were found bruised and tilling of skin was present on the left side of the neck. On dissection of injury No.1 on the neck, infiltration of blood was present on both sides of neck in the soft tissues and in the vessels of neck. The vessels were found having laceration and clotted blood was present underneath the laceration. Trachea was found congested and contained froth.” (Emphasis added). 13. The viscera of the deceased was also taken and sent to Chemical Examiner for analysis, but as per the report of the Chemical Examiner (Ex.PF), no poison was detected. Therefore, the cause of death of Crl. A. No. 259-DB of 2003 -12- the deceased being due to poisoning was completely over-ruled, which could have suggested the commission of suicide by the deceased. In view of the aforesaid injury, the Doctors have clearly opined that the cause of death in this case was asphyxia as a result of ligature strangulation, which was sufficient to cause death in the ordinary course of nature. 14. Whether in the present case, the strangulation was a suicidal act of the deceased or it was a homicidal act of the accused or any one of them, is the next question to be determined. During post-mortem examination, Doctors have very positively found that 29 cms. long ligature mark, 1 cm x 1.5 cm in width, was present at the level of thyroid cartilage on the neck extending from 12 cms below ear lobule and back of head upto front of neck. It was horizontally placed upto the right side of neck at the level of mandible. This injury found on the body of the deceased clearly indicated that the ligature strangulation in the instant case was caused by some one, as it cannot be self suffered. The said ligature mark was found extending from 12 cms below ear lobule and back of head on the left side upto front of neck. This injury further indicates that the deceased was strangulated with some object by a person standing behind her. Further, in the instant case, it cannot be said that the strangulation was by way of hanging. It is neither the case of the defence nor there is any evidence on record to this effect. If it was a case of hanging, then the ligature marks should have been in oval shape, whereas in the instant case, the ligature mark was found to be horizontally placed upto the right side of neck at the level of mandible, which clearly rules out Crl. A. No. 259-DB of 2003 -13- the possibility of the present case to be a case of hanging. Thus, from the medical evidence, it is clear that the instant case is a case of homicidal death and not suicidal death. 15. Now it is to be seen that who has caused the homicidal death of deceased Anita in her matrimonial home. In the present case, there is no direct evidence as to who had caused the death of the deceased. It is a case of circumstantial evidence. However, according to the prosecution case, all the three accused have caused the death of the deceased by strangulating her. A-2 and A-3 caught hold the deceased by her hands and A-1 strangulated her with a telephone wire. This prosecution version is based upon the extra judicial confession, allegedly made by the accused before PW.13 Ramesh Kumar. The second circumstantial evidence led by the prosecution is the statement of PW.10 Vinod Kumar, who had allegedly seen all the three accused immediately after the occurrence. Regarding the motive and the cause of death, the prosecution is relying upon the testimonies of PW.7 Ramesh Dutt, PW.9 Gulshan Sharma and PW.11 Jagdish Raj, who have stated that all the three accused were harassing and giving beatings to the deceased on account of bringing money from her parents. It is pertinent to mention here that after the investigation of the case, the police submitted challan against all the accused under Section 304- B/34 IPC, by taking the death of the deceased as an un-natural death within seven years of the marriage, as she was being harassed by the accused on account of demand of money, just before her death. But later on, the Crl. A. No. 259-DB of 2003 -14- complainant Ramesh Dutt (father of the deceased) filed a private complaint against the accused for punishing them under Section 302 read with Section 34 IPC, as according to him, all the accused had caused the death of the deceased by strangulating her. While filing the complaint, the complainant introduced PW.10 Vinod Kumar, who is alleged to have seen the accused coming out of the house after committing the crime, and PW.13 Ramesh Kumar, before whom the extra judicial confession was made by the accused. It is pertinent to mention here that during the police investigation, neither the statements of both these witnesses were recorded nor they were cited as prosecution witnesses in the police case. After summoning of the accused for the offence under Section 302 read with Section 34 IPC in the private complaint, the police case as well as the complaint case were ordered to be clubbed, and all the three accused were tried for commission of offence under Section 302 read with Section 34 IPC. As discussed in the earlier part of the judgment, the trial court has disbelieved the evidence of extra judicial confession, led by the prosecution, by giving various reasons. After going through the said evidence and carefully analysing the same, we find that the trial court has rightly disbelieved the said evidence. In our view, the version of extra judicial confession given by the said witness is not only highly improbable, but his statement has also not been corroborated by the other prosecution witnesses, namely PW.7 Ramesh Dutt and PW.12 Kuldip Sharma, SI. In his statement, PW.13 Ramesh Kumar has stated that immediately after the extra judicial confession made by the accused, he went Crl. A. No. 259-DB of 2003 -15- to the house of the complainant, but he did not find the complainant party at their house, because they had left their house, then he came to the house of the deceased, where he had told the fact of extra judicial confession made by the accused to the complainant as well as to the police. But