Crl.A.No.90 DB of 1999 1 IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of decision: February 12, 2008 Criminal Appeal No.90 DB of 1999 Dharamvir .....Appellant vs. The State of Haryana ......Respondent CORAM: Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice S.D.Anand Present: Mr. Vinod Ghai, Advocate for the appellant. Mr. PS Sullar, DAG,Haryana for the State. JUDGMENT: The appellant challenges his conviction under section 302 IPC, for which he has been sentenced to undergo life imprisonment and to pay fine of Rs.2000/-, in default, to undergo RI for one year. Case of the prosecution is that the deceased Meena Devi, wife of the appellant was married to him on 20.5.1997. According to PW1 Mukesh, brother of the deceased, the accused used to ask the deceased to bring a buffalo from her parents and on his visit to the house of the appellant, he raised the said demand Crl.A.No.90 DB of 1999 2 about four and half months prior to the occurrence. About one and a half months prior to the occurrence, the accused visited the house of the parents of the deceased and repeated his demand. On the night intervening 7/8.2.1998 at 2 PM or 2.30 PM, Mauji Ram PW5 of Village Ghimana (Village of the appellant) came to the house of the parents of the deceased at Village Baniakhera and informed them that Meena Devi had died. Since, father of the deceased Surajmal was not well, PW1 Mukesh accompanied by PW2 Satyawan, Vice Sarpanch and Rajpal went to the matrimonial home of the deceased at 4 A.M.. They found the deceased lying dead on a 'charpai' with visible signs of injuries around her neck. They asked the appellant the cause of death. He confessed that in the night at 10 PM, there was an altercation between him and the deceased over his demand of buffalo and in a fit of anger, he strangulated her with the help of a 'dupatta'. PW1 Mukesh proceeded to inform the police and met SI Chander Bhan PW10 on the way, who recorded his statement, leading to registration of FIR. PW10 Chander Bhan came to the place of occurrence, prepared inquest report and sent the dead body to the Hospital for post mortem examination. He also prepared rough site plan and recorded statement under section 161 Cr.PC. Later, he took into possession clothes of the deceased. On 9.2.2008, investigation was handed over to Inspector Daya Nand PW12, who arrested the Crl.A.No.90 DB of 1999 3 accused and recorded his disclosure statement leading to recovery of 'chunni' Ex.P1. On 10.2.1998, investigation was again handed over to Chander Bhan PW10, who obtained opinion of the doctor Ex.PH/2, to the effect that injuries could be possible with the 'Chunni'. The accused was, thereafter, sent up for trial. The prosecution examined 12 witnesses – PW1 Mukesh, brother of the deceased, PW2 Satyawan, PW3 Ram Murti, mother of the deceased, PW4 Hira Lal, husband of the elder sister of the deceased, PW5 Mauji Ram, neighbour of the appellant who was go-between for the marriage, PW6 Harish Kumar, Photographer, PW7 Dr. VP Kakkar, who conducted post mortem examination, PW8 Constable Subhash Chander, who took the copy of FIR to the Magistrate, PW9 Constable Joginder Singh, who took the dead body for post mortem examination, PW10 SI Chander Bhan, I.O., PW11 Constable Balwant Singh, Draftsman and PW12 Inspector Daya Nand. The accused denied the prosecution allegations. The trial court held that case under section 304 B IPC was not made out, as harassment for demand of dowry was not established but the accused was proved to have committed the murder of the deceased. We have heard learned counsel for the parties and perused the record. Crl.A.No.90 DB of 1999 4 Learned counsel for the appellant submitted that there were discrepancies about the time of lodging of the FIR in as much as according to I.O. SI Chander Bhan PW10, statement was recorded at 1.30 PM while according to PW1 Mukesh, his statement was recorded at 6.30 AM and having regard to the time of copy of FIR reaching the Magistrate i.e. on 8.2.1998 at 6 PM, there was more than 14 hours' delay in lodging the FIR. Extra judicial confession before brother and uncle of the deceased did not inspire confidence. Similarly, extra judicial confession made before Hira Lal PW4 was also not reliable. Though Hira Lal claimed that he produced the accused before the police, the police did not corroborate this. It was also submitted that the recovery of 'Chunni' from the accused was not reliable, as according to PW5 Mauji Ram, the 'Chunni' was around her neck, when he saw the dead body. It was a case of suicide and not homicide as per medical evidence. Motive was not proved. We do not find any merit in the contentions raised. Before referring to the other evidence on record,it is necessary first to refer to the medical evidence. PW7 Dr. V.P.Kakkar deposed that on 8.2.1998, he conducted post mortem examination on the dead body of Meena Devi, aged 20 years and found the following injuries:- “1. There was a ligature mark encircling around the Crl.A.No.90 DB of 1999 5 neck at the level of lower part of thyroid cartilage and upper tracheal rings, almost transversely placed, slightly depressed from skin. The width was 1-5 cm. The margins were irregular and abraded on the floor. The ligature mark was more prominent on anterior and lateral parts of neck and was faint and light on posterior aspect of neck. On dissection there was infiltration of blood in subcutaneous and muscular layer under the ligature mark. The muscles and large vessels were contused Thyroid cartilage was fractured and compressed. Blood stained froth was present in the lumen. There was no other injury present in any other part of body. The cause of death in this case in our opinion was Asphyia as a result of strangulation which was ante mortem in nature and sufficient to cause death in the normal course of nature. The time given between injury and death was within few minutes and between death and post-mortem was within 4 to 48 hours. X xxx xxx xxxx Thereafter I opined that the cause of death in this case was due to strangulation with the 'chunni'. My report in this regard is Ex.PH/2...” From the above evidence, it is clear that the death was homicidal and was possible by strangulation with the help of Dupatta Ex.P1. The accused in his statement under section 313 Cr.PC, in reply to Question No.5 - whether Mauji Ram PW5 went Crl.A.No.90 DB of 1999 6 to inform the family of the deceased and members of the family came and found the deceased dead, stated “it is correct that Mst. Meena had died and her parents were informed accordingly”. It can, thus, be safely held that the accused was in the company of the deceased at the place and time where the deceased was killed. From this fact itself, the accused is to required to explain under section 106 of the Evidence Act, how and in what circumstances, the victim died or he has to own liability for the homicide. No explanation whatsoever has been offered by the accused except showing that he was falsely implicated. In absence of any acceptable explanation by the accused, from the presence of the accused by the side of the deceased at the time of death, case against the appellant stands established. The evidence of extra judicial confession made before Mukesh PW1, brother of the deceased, who came to the place of occurrence immediately, besides extra judicial confession before PW4 Hira Lal is only corroborative. No doubt, extra judicial confession by itself may be weak evidence but where the same is natural and inspires confidence, the same can be taken into account as corroborative of the primary evidence. The evidence of the accused being with the deceased and his not giving any explanation as to how the deceased died, by itself proves his involvement in the crime. We are unable to hold that it was a case of suicide, as Crl.A.No.90 DB of 1999 7 suggested by the learned counsel for the appellant. Mere absence of marks of struggle does not rule out homicidal strangulation. The medical evidence is categorical about the possibility of death being by strangulation with the 'Chunni'. Thyroid Cartilage was fractured and compressed. Other discrepancies pointed out by the learned counsel for the appellant are not significant. There is no gross delay in lodging of the FIR. A close relative who is grief stricken may not immediately report the matter to the police. Some time is bound to be taken. Moreover, little delay in loading of the FIR is not enough to reject the prosecution version, when the version of the prosecution is held to be duly established even on close scrutiny. Discrepancy about time of lodging of FIR can be on account of loss of memory. The accused had the time to remove the 'Chunni' and that explains the recovery from the accused. As already observed, the evidence of recovery of 'Chunni' is not the only evidence. The case being proved against the appellant, no significance can be attached to the minor discrepancies pointed out. Even if motive of demand of buffalo is not proved, no dent can be held to have been caused to the prosecution case. There is clear evidence of accused being with the deceased when she suffered homicidal death and there is no acceptable explanation from the accused. Crl.A.No.90 DB of 1999 8 Accordingly, we do not find any ground to interfere with the conviction and sentence of the appellant. The appeal is dismissed. (Adarsh Kumar Goel) Judge February 12, 2008 (S.D.Anand) gs Judge