IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 615-DB of 2001 DATE OF DECISION : 26.04.2010 Jai Pal .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Vinod Ghai, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. The appellant has filed this appeal against the judgment dated 24.10.2001 and the order dated 29.10.2001, passed by the Court of Additional Sessions Judge, Panipat, whereby he has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/- under Section 302 IPC, for committing the murder of his wife, and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- under Section 201 IPC, for causing disappearance of evidence of murder. 2. In this case, the appellant and one Vijay Pal were tried for committing offences under Sections 302 and 201 IPC. However, after Crl. A. No. 615-DB of 2001 -2- recording the evidence of the prosecution, since no incriminating evidence was appearing against Vijay Pal, therefore, the recording of his statement under Section 313 Cr.P.C., was dispensed with and vide the impugned judgment, he has been acquitted of the charges. 3. As per the prosecution version, which is based upon the statement of PW.1 Kishna, father of deceased Sheela, the deceased was married with appellant Jai Pal about 9/10 years prior to the day of occurrence. There used to remain quarrel between both the spouses, because the character of appellant Jai Pal was not good. Sheela was given beatings and was turned out of her matrimonial home by appellant Jai Pal and she stayed at the house of the complainant Kishna for about one year. Then, about six months prior to the occurrence, the Panchayat persuaded the complainant to send his daughter Sheela with appellant Jai Pal, but thereafter, quarrel used to remain between the couple. On the day of occurrence i.e. on 26.4.1994 at about 5 AM, Des Raj (PW.5) and Mehak Singh residents of village Behrampur came to the village of the complainant and informed him that his daughter had been strangulated to death by appellant Jai Pal along with others and her dead body was thrown in the Gitwars. On receipt of the information, complainant Kishna along with his son Maman and other persons of the village came to village Behrampur and saw the dead body of his daughter lying in the Gitwars. The complainant further stated that appellant Jai Pal and other persons had strangulated his daughter, therefore, action be taken. The said statement (Ex.PA) was Crl. A. No. 615-DB of 2001 -3- recorded near Bus Stand Bapoli on 26.4.1994 at 12.30 PM. On the basis of this statement, on the same day, the formal FIR (Ex.PA/1) was registered at Police Station Sadar Panipat at 1.30 PM, and the special report was delivered to the Illaqa Magistrate at 3.35 PM on the same day. In the inquest report (Ex.PF), the date and hour of discovery of the offence is recorded as 26.4.1994 at 9.50 AM. It was further noticed that there were injuries on the right side of neck and mouth of the deceased and there was one small sign of wound on the left side on the mouth. The dead body was lying in the Gitwars of appellant Jai Pal and apparent cause of death recorded therein was strangulation. 4. On 26.4.1995 at about 5.00 p.m., Dr. Tajinder Kharbanda (PW.8) conducted autopsy on the body of the deceased. He found the following injuries on her body : 1. Ligature mark was irregular 2” x 1/2” on the right side of the neck at the level just below the thyroid cartilage, margin were edematous congested. On cut section under lying ligature mark was ecchymosed an sub cotaneous tissues. 2. Depressed area 2” x 3/4” on the front of neck in its mid part just anterior to thyroid cartilege. On cut section under lying tyroid cartilage hyoid bone was found fractured. Blood clots were present. Trachea was full of blood clots. 3. Abrasion of 2 cm x 1 cm irregular on the left side of the neck, 1.5 cm away from injury no.2. Crl. A. No. 615-DB of 2001 -4- 4. Contusion and bruise on back of abdomen at the level of L3 and L4 spine. 5. Blood stains and frothy secretion present on the nose. 6. Abrasion of 1.5 cm x 1 cm on the right side of the face on the right side near the angle of mouth at the lateral end. Face was congested. 5. All the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. In the opinion of the Doctor, the cause of death in this case was as a result of asphyxia due to strangulation. The appellant was arrested on 7.5.1994. In pursuance of his disclosure statement (Ex.PK/1), the appellant got recovered one pliers and a rope from his house from underneath the bricks, which were taken into possession vide memo Ex.PK. 6. After completion of investigation, challan was filed against the appellant and his co-accused Vijay Pal and they were charge sheeted for the offences punishable under Sections 302 and 201 IPC, to which they did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined 10 witnesses. PW.1 Kishna is the complainant, father of the deceased. He has supported the case of prosecution. PW.2 Om Parkash son of Sehaj Ram, before whom accused Vijay Pal allegedly made extra judicial confession regarding his involvement in the crime, did not support the prosecution case and was declared hostile. He was cross-examined by the Public Prosecutor and in his cross-examination, he stated that he did not make any statement to the Crl. A. No. 615-DB of 2001 -5- police with regard to the extra judicial confession made by co-accused Vijay Pal. PW.3 Dhoom Singh, Ex-Sarpanch of village Behrampur, before whom the appellant made extra judicial confession with regard to the murder of his wife and then placing the dead body on the electric cable, also did not support the prosecution case and was declared hostile. He was also cross- examined by the Public Prosecutor. In the cross-examination, he has denied that he ever made any such statement before the police. 8. PW.4 Hawa Singh, a resident of village Brahampur, who while returning from his fields on the intervening night of 25/26.4.1994, had seen the appellant placing the dead body of deceased Sheela on the electric cable, and on his asking, the appellant ran away from the spot, leaving the dead body there, also did not support the prosecution version. He was declared hostile and was cross-examined by the Public Prosecutor. In his cross- examination, this witness has stated that on 26.4.1994 at about 6 a.m., in the morning, when he was passing from the side of Gitwars of the appellant, he found that the appellant was crying along with his other family members. Des Raj and Mehak Singh were sent to village Chulkana to inform the parents of the deceased. The appellant was present at his Gitwars, when complainant Kishna and others came there. 9. PW.5 Des Raj resident of village Behrampur has corroborated the statement of the complainant with regard to the harassment and beating of the deceased. He has also stated that on the intervening night of 25/26.4.1994 at about 3.00 a.m., he went to the Gitwars of the appellant and Crl. A. No. 615-DB of 2001 -6- thereafter, upon asking of other respectable persons, he along with Mehak Singh had gone to village Chulkana to inform the father of the deceased about the occurrence. 10. PW.6 Jagdish resident of village Behrampur has corroborated the version of the complainant with regard to the harassment and beating by the appellant. He has further stated that on the day of occurrence at about 3.00 a.m., when he was going from his house to the fields, he found that the appellant was present on the roof of the house of Dilla Ram and was tampering with the electric wire near the roof of the house. When this witness asked him as to what he was doing, then he replied that he was trying to set right the light. Then this witness proceeded towards his fields. In the meantime, Hawa Singh PW met him on the road side, while he was coming back from his fields. He told this witness that there is no electricity supply in the fields. Then, in stead of going to his fields, this witness came back to his house. When he was coming back, Hawa Singh was going ahead of him. 11. PW.7 Bhaiya Ram ASI, who recorded the statement of the complainant, on the basis of which the FIR was registered, has partly investigated the case and handed over the further investigation to SHO Hari Singh. PW.8 Dr. Tajinder Kharbanda, who conducted the post mortem on the body of the deceased, proved the post mortem report Ex.PF. PW.9 Surinder Verma, Draftsman, proved the scaled site plans Ex.PG and Ex.PG/1 of the place of occurrence. PW.10 Inspector Hari Singh is the Crl. A. No. 615-DB of 2001 -7- Investigating Officer of the case, who arrested the appellant and effected the recovery. 12. After the closure of the prosecution evidence, no incriminating evidence was found to be appearing against accused Vijay Pal and, accordingly, the recording of his statement under Section 313 Cr.P.C., was dispensed with. However, appellant Jai Pal, in his statement under Section 313 Cr.P.C., denied the incriminating evidence appearing against him. He pleaded innocence and false implication in the case. However, he did not lead any evidence in his defence. 13. The trial court, while relying upon the medical evidence, statement of the complainant, which is corroborated by PW.5 Des Raj and PW.6 Jagdish with regard to the motive; and the evidence of last seen i.e. statement of PW.6 Jagdish Singh as well as the fact that the appellant, who was present in his house on the day of occurrence, did not explain the circumstances under which his wife died due to strangulation, convicted and sentenced the appellant under Sections 302 and 201 IPC, as indicated above, for committing the murder of his wife by strangulation on the intervening night of 25/26.4.1994 and thereafter, causing disappearance of evidence of murder. 14. We have heard the arguments of learned counsel for the parties and perused the record of the case. 15. Learned counsel for the appellant argued that in this case, there is inordinate delay in lodging the FIR and the prosecution in connivance Crl. A. No. 615-DB of 2001 -8- with the complainant, while taking benefit of the delay, has manipulated the prosecution version, particularly with regard to the motive alleged against the appellant. Learned counsel further argued that as per the prosecution version, death of the deceased was caused by strangulation at 1.30 a.m., and the factum of death came to the knowledge of the witness at 3.00 a.m. Thereafter, parents of the deceased were informed. Complainant Kishna came in the village at 6.45 a.m. Thereafter, the police also came on the scene, but statement of the complainant was recorded at 12.30 p.m., on the basis of which the formal FIR was registered at 1.30 p.m. According to the learned counsel, the aforesaid delay has not been explained, which is fatal to the prosecution case. Learned counsel further argued that in the instant case, there is no direct evidence against the appellant and the case of the prosecution is based upon circumstantial evidence. In order to prove the alleged guilt against the appellant, the prosecution has relied upon the circumstantial evidence of extra judicial confession made by the appellant, motive and last seen. He argued that as far as the alleged extra judicial confession made by the appellant is concerned, PW.3 Dhoom Singh did not support the prosecution case regarding the making of extra judicial confession by the appellant. With regard to the motive and last seen, learned counsel pointed out that the evidence of motive led by the prosecution is concocted one. PW.5 Des Raj and PW.6 Jagdish, who corroborated the evidence of motive, are related to the complainant, as they have admitted this fact in their cross-examination. Learned counsel submits that no Crl. A. No. 615-DB of 2001 -9- member of the Panchayat, with whose intervention the deceased was earlier sent with the appellant, has been examined by the prosecution. He further argued that statements of both these witnesses, who have corroborated the statement of the complainant with regard to the motive, are wholly unreliable. Regarding the evidence of last seen, learned counsel argued that the statement of PW.6 Jagdish is highly improbable, as there was no reason for this witness to go to his fields at 3.00 a.m., on the day of occurrence. According to the learned counsel, this witness was introduced by the prosecution being the relative of the complainant. Learned counsel further argued that the prosecution has prima facie failed to prove that strangulation of the deceased had taken place in the house of the appellant and thereafter, the appellant had thrown the dead body in his Gitwars and to hide the crime, he cut the electric wire and put the dead body on the same. In order to prove that the dead body was lying on the wire, the prosecution did not produce the photographs taken on the spot, which was the best available evidence. Learned counsel further submits that from the site plans Ex.PG and Ex.PG/1, it is not clear that the Gitwar alleged to be belonging to the appellant was adjoining to his house. In view of these facts, learned counsel argued that because of the non-explanation of the circumstances by the appellant under which his wife has died due to strangulation, no presumption can be drawn against the appellant under Section 106 of the Indian Evidence Act, 1872. According to the learned counsel, in the instant case, the prosecution has completely failed to establish the chain of Crl. A. No. 615-DB of 2001 -10- circumstances, which clearly point towards guilt of the appellant. Thus, the prosecution has failed to prove the guilt of the appellant beyond shadow of reasonable doubt and the appellant is entitled to be acquitted. 16. On the other hand, learned counsel for the respondent-State, while supporting the judgment of the trial court, argued that the prosecution has fully proved its case against the appellant and he has been rightly convicted and sentenced by the trial court under Sections 302 and 201 IPC. 17. We have considered the various submissions made by learned counsel for the parties and have gone through the record of the case. 18. It has been proved on record that dead body of Sheela wife of the appellant was found in his Gitwars, situated in village Behrampur. Her dead body was found lying on the electric wire. This fact has been proved by the statements of PW.1 Kishna, PW.5 Des Raj and PW.6 Jagdish, as well as the scaled site plan Ex.PG. During the autopsy of the deceased, PW.8 Dr. Tajinder Kharbanda noticed six injuries on the nose and mouth of the deceased. Hyoid bone was found fractured. Injuries were found on the back of abdomen at the level of L3 and L4 spine. Blood stains and frothy secretion were present on the nose. In the opinion of the Doctor, the cause of death was as a result of asphyxia due to strangulation. Thus, from the medical evidence, it has been proved that death of the deceased was homicidal and not suicidal. 19. Now, the question arising for consideration is whether the appellant has caused the death of his wife due to strangulation. In this Crl. A. No. 615-DB of 2001 -11- regard, there is no direct evidence against the appellant. The case of the prosecution is based upon circumstantial evidence. In order to prove the guilt of the appellant, the prosecution led three types of circumstantial evidence i.e. (i) evidence of motive; (ii) evidence of last seen; and (iii) the extra judicial confession made by the appellant. 20. Firstly, the prosecution has fully proved the motive with the appellant to commit the crime. The version of motive given by PW.1 Kishna, father of the deceased, has been fully corroborated by the statements of PW.5 Des Raj and PW.6 Jagdish. PW.1 Kishna has categorically stated in the court that appellant Jai Pal, his son-in-law, was a man of bad character. He used to beat the deceased on that account. She came to her parents house about 1 ½ years prior to the day of occurrence and stayed there for about one year. He has further stated that six months prior to the day of occurrence, with the intervention of the Panchayat, he sent his daughter with the appellant on his assurance that in future, he will not beat her, but thereafter also, there was no change in the behaviour of the appellant and he used to quarrel with her. This statement has been fully corroborated by PW.5 Des Raj and PW.6 Jagdish. On careful perusal of these statements, we do not find any infirmity in the same. Merely because PW.5 Des Raj and PW.6 Jagdish are related to the complainant, as it has come in the evidence that PW.5 Des Raj is the son-in-law of the sister of the complainant and PW.6 Jagdish was married in the family of the complainant, their testimonies with regard to the aforesaid motive cannot be Crl. A. No. 615-DB of 2001 -12- discarded. Even otherwise, in their cross-examination, no suggestion was put to them that there was no dispute between the husband and the wife and the wife was never turned out of the house and with the intervention of the Panchayat, she was not sent to her matrimonial home. Though there is slight delay in lodging the FIR in this case, but the same is not fatal to the prosecution case, as there is nothing on record to suggest that the delay has been mis-used to concoct the prosecution version. In the statement (Ex.PA), the complainant did not level any direct allegation against the appellant for committing the death of his wife by strangulation. In the said statement, he has stated about the past conduct of the appellant with his wife. Therefore, it cannot be said that by taking the benefit of the delay, any witness was introduced or any version was concocted with regard to the commission of the offence. The contention of learned counsel for the appellant that by taking the benefit of the delay, the version regarding motive was concocted, cannot be accepted, because for concocting the version of motive, no time is required. Thus, in our opinion, in the facts and circumstances of the case, it cannot be said that by taking the benefit of delay, the complainant has concocted the version with regard to the motive. 21. Secondly, in order to prove the evidence of last seen, the prosecution examined PW.6 Jagdish and PW.4 Hawa Singh. PW.6 Jagdish has supported the case of the prosecution. He has stated that on the day of occurrence at about 3.00 a.m., when he was going from his house to the fields, he saw appellant Jai Pal on the roof of the house of Dilla Ram and he was doing some thing with the electric wire. On the asking of this witness, Crl. A. No. 615-DB of 2001 -13- he replied that he was trying to set right the light. Thereafter, this witness went to his fields and after some time, he came on the scene and saw that dead body of Sheela was lying in the Gitwars. The testimony of this witness cannot be discarded only on the ground that he was married in the family of deceased Sheela. In the month of April (harvesting season), it also cannot be said to be improbable for a farmer to go to his field for work at 3.00 a.m. Therefore, the argument of learned counsel for the appellant that there was no occasion for the said witness to go to his field at 3.00 a.m., is without any substance. The second witness of last seen, namely PW.4 Hawa Singh, though has not supported his earlier version that he had seen the appellant placing the dead body of his wife on the electric cable, but he has admitted that in the morning at 6.00 a.m., appellant Jai Pal was present in his Gitwars, where the dead body was lying. He has also admitted that PW.5 Des Raj and Mehak Singh were sent to village Chulkana for reporting the death of Sheela to her parents. Thus, he has also admitted the presence of Des Raj on the spot. 22. Thirdly, in order to prove the extra judicial confession made by the appellant with regard to the murder of his wife, the prosecution has examined PW.3 Dhoom Singh, a resident of the village. He has not supported the prosecution case. Therefore, the alleged evidence of extra judicial confession has not been proved by the prosecution, but from the evidence led by the prosecution, it has been proved that on the day of occurrence, the appellant was present in his house. The dead body of his wife Sheela was found in his Gitwars. From the medical evidence, it has Crl. A. No. 615-DB of 2001 -14- been proved that the cause of death of Sheela was asphyxia due to strangulation. Once these facts have been prima facie established, then the burden shifts on the appellant to prove as to under what circumstances and in which manner, his wife has died due to strangulation. 23. Generally, in a criminal trial, an accused starts with the presumption of innocence in his favour and the presumption holds the field till the prosecution succeeds in establishing the guilt of the accused beyond all reasonable doubts. Unlike civil cases, the onus that rests on the prosecution in criminal cases does not shift from time to time, howsoever flimsy or unreliable the evidence for the defence may be. The prosecution has to prove its case beyond reasonable doubt and the accused need not to open his mouth or to lead any evidence, and if the prosecution succeeds in establishing its case, the conviction in the absence of anything to the contrary will follow, but if the prosecution fails to discharge the onus which lies upon it to prove the charge, he is entitled to an acquittal. But there are certain exceptions to this rule. One of those exceptions has been provided under Section 106 of the Indian Evidence Act, 1872, where in certain circumstances established on the record, the onus shifts on the accused to explain the facts especially within his knowledge which would render the evidence of the prosecution nugatory. However, it is settled that this section cannot be used to support a conviction unless the prosecution discharges its onus by proving the elements necessary to prove the offence. In the instant case, the prosecution has proved the motive for committing the crime. It has also proved the circumstance that at the relevant time, the appellant was Crl. A. No. 615-DB of 2001 -15- seen near the place of occurrence. It has also been proved that the offence was committed in the house and the appellant was present at that time in the house. It has also been established that wife of the appellant had died due to strangulation, which was a homicidal death and not a suicidal death. In these circumstances, the onus lies on the appellant to explain as to under what circumstances and in which manner his wife has died due to strangulation. But, in his statement under Section 313 Cr.P.C., the appellant did not give any explanation. He only stated that he was innocent