IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.442-DBA of 2001 Date of Decision: 26.02.2010 State of Haryana Appellant Versus Abhijit Sur Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.P.S.Punia, Additional Advocate General Haryana for the appellant-State Mr.Varinder Verma, Advocate for the respondent Jasbir Singh, J. By filing this appeal, State of Haryana has impugned the judgment dated 15.3.2000, vide which, respondent Abhijit Sur was acquitted of the charges framed against him under Section 302 IPC and 304-B IPC. It was allegation against the respondent that on 9.6.1996, he has committed murder of his wife, namely, Babli. It is an admitted fact on record that marriage of the respondent was solemnized with the deceased on 10.3.1996. They resided together at Calcutta for a period of about 10/12 days. Thereafter, both shifted to Ambala, where, she died on 9.6.1996. As per case of the prosecution, Babli was brought to the hospital by the respondent on 9.6.1996 at 5.40 pm. After examination Criminal Appeal No.442-DBA of 2001 by Dr.(Sq.Ldr.) A.D.Upadhayay (PW2), she was declared brought dead. FIR was recorded on a statement made by Jai Ram Budhwan (PW7), a neighbour. In his statement, he has deposed as under:- “…..that, I am employed in Air Force at Ambala Cantt and is residing with my family in Quarter No.2/30 Mazumdar Line Ambala Cantt. Abhijeet Sur J.W.P. Weapon Fitter 7 Wing Air Force Ambala Cantt, is residing with his wife Babli Sur for the last 20/25 days in Quarter No.2/29 which is adjacent to my Quarter. Abhijeet Sur and Babli Sur used to quarrel with each other almost daily 10/12 days earlier, I and my wife Smt.Sandeep Budhwan saw Babli Sur from over the wall of our Quartr. There was swelling on her face eyes and bluish marks. On seeing her I was frightened. I asked Abhijeet Sur so many times as to why he does not get checked up his wife in the hospital. He told tht is the matter between husband and wife and you no concerned. Today, at about 5.30 P.M. my wife told me that husband of Babli Sur has taken his wife to hospital in Ambulance. Thereafter, I came to know that Babli Sur has expired in Air Force Hospital. Thereafter was dispute between both of them. Abhijeet Sur also used to beat Babli. Babli has died due to beating, given by Abhijeet Sur.” FIR (Ex.PG) was recorded at 1.00 am on 10.6.1996 in police station Ambala Cantt. Special report reached the concerned Magistrate at 5.00 2 Criminal Appeal No.442-DBA of 2001 am on that very day. The respondent was also arrested by the Investigating Officer on 10.6.1996. It was further case of the prosecution that immediately after marriage, when parents of the deceased came to her house, they saw swelling on her face. However, on questioning, she failed to state any reason for the same. Father of the respondent told them that she had a fall from her bed. In the first week of April, she visited house of her parents and told them that she was beaten up by the respondent for brining less dowry. Thereafter, on a request made by the respondent, Babli was brought to Ambala by her father, namely, Kartik Chanda (PW11), who stayed with the couple for about four days and during that period, it was case of the prosecution, that the respondent again raised a demand regarding Fridge, Television etc. Father of the deceased showed his inability to arrange those articles due to financial constraints. PW11 went back to Calcutta, contacted father of the respondent and brought strained relations between the deceased and the respondent to his notice and also intimated regarding demand of dowry by the respondent. He was assured that matter will be settled. As per admitted facts, on 9.6.1996, at 5.30 pm, respondent went to the Air Force Hospital in order to bring an Ambulance in which, thereafter, he shifted his wife to the hospital. She was medico legally examined by Dr.(Sq.Ldr.) A.D.Upadhayay (PW2). After examination, she was declared dead. An intimation (Ex.PN) was sent by the above said witness to the police station, which activated the police officials to take action in this case. The Investigating Officer, 3 Criminal Appeal No.442-DBA of 2001 Narinder Kumar (PW13) reached the hospital, no one was present near the dead body. He went to the house of the respondent, which was also found locked. The Investigating Officer then met Jai Ram Budhwan (PW7) and after recording his statement, an FIR was registered against the respondent. The Investigating Officer then went to the hospital, prepared inquest report of the dead body and sent it for post-mortem examination, which was conducted by Dr.P.S.Ahuja (PW1) on 10.6.1996. ‘Rupture of spleen which led to hemorrhage and shock’ was declared a cause of death and death was declared unnatural. The Investigating Officer then got prepared rough site plan of the place of occurrence with correct marginal notes. The respondent was arrested on 10.6.1996. On interrogation, he suffered a disclosure statement, which led to the recovery of an iron chain (Ex.P1), which was taken in possession against a recovery memo. One cover of a quilt, stained with blood, was also taken into possession. On examination, it was found stained with human blood. The Investigating Officer then recorded statements of the other witnesses, including employees of Air Force Station at Ambala. He also took into his possession a certificate (Ex.PX), showing allotment of quarter No.2/29, Mazoomdar Lines, Air Force Quarters, Ambala Cantt, to the respondent. On completion of investigation, final report was put in Court for trial. The respondent was charge sheeted for commission of an offence, punishable under Section 302 IPC and 304-B IPC, to which, he pleaded not guilty and claimed trial. The prosecution 4 Criminal Appeal No.442-DBA of 2001 produced 13 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to him, which he denied, claimed innocence and false implication. In his statement, he deposed that before marriage, the deceased had links with a gang of smugglers. On 23.5.1996, when he came back to his house from duty at about 8 pm, he found swelling on the face of the deceased. On enquiry, she told him that few days prior to her marriage, she was given a packet containing heroin to be delivered to a specified person at Dam Dam, Air Port at Calcutta. Material was delivered, however, the person, to whom it was supplied, denied receipt of the same, she further stated that two members of that gang had given beatings to her in order to make an enquiry about the missing consignment and she stated true facts to them. However, they were not satisfied and gave beatings to her and further told her that if they failed to recover the material, they would come again. The respondent also took a defence of alibi by stating that on 9.6.1996, he had gone to Kaithal to see one of his friends and when he came back at 5.30 pm, he found his wife in a serious condition, he immediately rushed her to the Air Force Hospital, where she was declared dead. He also produced 11 witnesses in defence. The trial Court on appraisal of evidence, as led by both the parties, found that the prosecution has failed to prove its case and 5 Criminal Appeal No.442-DBA of 2001 accordingly, the respondent was acquitted of the charges framed against him. Hence, this appeal. Counsel for the appellant-State, by making reference to the medical evidence on record, argued that it was a case of murder, death had occurred within few months of the marriage between the parties, it was unnatural, the prosecution has proved demand of dowry by the respondent, as such, the trial Court was not justified in passing the impugned judgment. He further argued that the case of the prosecution was supported by the independent witnesses, to suggest that the relations between husband and wife were strained. He also made reference to the contents of MLR (Ex.PD), to say that the defence of alibi, taken by the respondent, was an after thought. He brought it to the notice of this Court that it was a vacation day, husband and wife were residing alone in their house. Under what circumstances, she had died, it was for the respondent to explain, which he has failed. He also argued that the trial Court had wrongly believed a ghost/ strange story, put up by the respondent. House is situated in a thickly populated area. As per statement made by the respondent, two persons had come to his house twice i.e. on 23.5.1996 and on 9.6.1996. It was a day time occurrence. None had seen those two unidentified persons. He further argued that the trial Court has gone wrong in believing that the respondent had left his house at 5.00 am on the fateful day and came back only at 5.30 pm. The defence version has wrongly been believed by the trial Court, which do not inspire any confidence. By making reference to the statement made by 6 Criminal Appeal No.442-DBA of 2001 Sham Singh (PW9) and A.K.Dass (PW10), he tried to stress that father of the respondent had intimated above named witnesses that relations between husband and wife were not cordial and made a request to them to intervene and settle the matter. He prayed that judgment, under challenge, be set aside and the respondent be convicted and sentenced for the offence, with which he was charged. Counsel for the respondent has vehemently opposed the prayer made by counsel for the appellant. He argued with vehemence that none of the prosecution witnesses have supported its case. PW7 Jai Ram Budhwan (the complainant) and his wife Mrs.Sandeep Budhwan (PW8) had turned hostile and had specifically stated that they had never seen the respondent quarreling with the deceased. By making reference to the defence evidence on record, he prayed that the prosecution has failed to prove any demand of dowry and further that the respondent was not available in his house during day time on the date of occurrence. By making reference to the statement made by N.K.Jain (DW4), a handwriting expert, he stated that the defence version stands fully proved on record. He, by supporting judgment passed by the trial Court, prayed that appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court feels that in acquitting the respondent, the trial Court has misread the evidence on record. The trial Court has wrongly believed that the respondent was not available in his house on the fateful day, had gone to meet a friend at Kaithal and came back only at 5.30 pm. The trial Court has 7 Criminal Appeal No.442-DBA of 2001 also failed to note that independent witnesses, namely, Sham Singh (PW9) and A.K.Dass (PW10) have stated that as per father of the respondent, relations between husband and wife were not cordial. Death has occurred within four months of the marriage and it was unnatural. After perusing the evidence on record, this Court feels that the prosecution was successful in proving its case regarding causing of injuries by the respondent to the deceased. So far as demand of dowry is concerned, it appears that evidence produced by the prosecution, was rightly discarded by the trial Court to that extent. It is an admitted fact that the deceased Babli was shifted to the Air Force Hospital by the respondent. In the hospital, she was medico legally examined by Dr. (Sq.Ldr.) A.D. Upadhayay (PW2), who found the following injuries at her person:- “1. Face swollen, small laceration 1 cms. forhead. 2. Bilteral orbital odema with echymosis with echymosis Lefe conjectiva. 3. Lacertion lower lip with dried thrombosed blood. 4. U shaped adrasion with intervening normal skin 1 cm, wide and 2 cms. long left side of neck. 5. Chest small abrasion steenal region. 6. No other marks on front of chest and abdomen. 7. Bluish disolouration (bruise) both deltoid left greated that right with abrasion on left. 8 Criminal Appeal No.442-DBA of 2001 8. Multiple large bruises on the back with abrasions – probably a nail mark all over back. 9. Underwear pulled down up to mid thigh. 10. Bruises both guiteal region laterally. 11. Bruises upper and mid thigh and leg. 12. Avalsion nail medially and laceration palmer aspect little finger left hand.” After examination, she was declared dead. Perusal of medico legal report (Ex.PD) shows that as per version given by the respondent, he had last seen the deceased at 0700 hours when he left the home. He came back at 1730 hours and found her collapsed on the ground. Then he rushed to bring an Ambulance and thereafter, she was shifted to the hospital. Post-mortem on the dead body was conducted by Dr.P.S.Ahuja (PW1) on 10.6.1996. He found the following injuries to the deceased:- “1. Left shoulder was bluish in colour. On top of it there were small agrasions. On cutting blood came out. 2. Right shoulder and upper part of right arm were also blue in colour. 3. There were multiple small abrasions on the whole of the back. Central part was relatively free. There were bluish marks present on the back extending towards the front. 9 Criminal Appeal No.442-DBA of 2001 4. Few small abrasions were present on both the knee.” He has further deposed as under:- “All the injuries were ante mortem in nature. On opening the throex there was fracture of ribs on the 8th to 10th on left side. On opening the abdomen spleen was ruptured, abdominal cavity was full of clotted as well as fluid blood. Rest of the organs were normal. In our opinion the death was due to rupture of spleen, leading to hemorrhage, shock and death.” This witness has further stated that injury to the spleen of the deceased was sufficient to cause death in an ordinary course. The witness has further stated that injuries on the person of the deceased were not possible with iron chain (Ex.P1). Nature of injuries clearly indicates that before death, the deceased was beaten up. As per Forensic Science Laboratory’s report, quilt’s cover was found stained with human blood. It has also come on record that the respondent and deceased had shifted to this accommodation less than a month earlier to the day of occurrence. Nobody else was residing with them. House is situated in a thickly populated area. It is a colony meant for officers of the Air Force. None has seen any stranger entering the house of the respondent. As per story put up by the respondent, two strangers had come on 23.5.1996 and had caused injuries to the deceased and thereafter, they may have come again on the fateful day and committed murder of the 10 Criminal Appeal No.442-DBA of 2001 deceased. It is also case of the respondent that regarding incident which had occurred on 23.5.1996, he had intimated his superior officers and also supplied confessional writing by the deceased to the authority concerned. Fearing danger he had asked for protection, which was not provided. He has further stated that his father made a request to Mr.A.K.Dass (PW10) and Shyam Singh (PW9) to provide security to him. His father had also brought misdeeds of the deceased to the notice of the witnesses, named above. PW7 Jai Ram Budhwan and his wife Mrs.Sandeep Budhwan (PW8) had turned hostile. Both are next door neighbour of the respondent. In their examination-in-chief, they have stated that they have heard the respondent and the deceased quarrelling with each other in Bengali language. PW7 has further admitted that on 28th and 29th May 1996, he has seen swelling on the face of the deceased. Rest of the prosecution’s story, he has not supported. Similarly, PW8 has also stated that there used to be loud voice of exchange of words between respondent and his wife. Sham Singh (PW9), Master Warrant Officer, Air Force Police, Ambala Cantt has deposed that on 23.5.1996, father of the respondent came to him and complained that his son was maltreating his wife and wanted him to take action. This witness has further deposed that his father refused to give anything in writing because he was afraid of the respondent. This witness has further stated that he called the respondent in his office and advised him not to harass his wife. He has further deposed that Wing Cdr.R.Bali, Security Officer A.K.Dass and he called the respondent 11 Criminal Appeal No.442-DBA of 2001 and told him to behave properly with his wife. Similarly, H.Flying Officer, A.K.Dass, Air Force Station, Ambala (PW10) has deposed that on 23.5.1996, father of the respondent came to him and stated that the respondent was not behaving properly with his daughter-in-law. He has also supported version of PW9 that father of the respondent has refused to give anything in writing. This witness has also admitted that he is residing at a distance of 500 yards from the house of the respondent and he had received a telephonic call from the father of the deceased asking about welfare of the respondent. As per version of the respondent, also meeting of his father with the officers, mentioned above, is admitted. However, the respondent has stated that his father had gone to intimate the authority regarding misdeeds of his wife and threat perception to the family. If that was so, PW9 and PW10, who are independent witnesses, they were supposed to disclose that fact, however, both of them have stated to the contrary, as has been discussed above. Above said fact coupled with a statement made by PW8, clearly indicates that relations between husband and wife were not cordial and further that defence version is only an after thought. PW11 Kartik Chanda, father of the deceased has also stated that relations between husband and wife were not cordial. His deposition regarding demand of dowry has rightly been discarded by the trial Court. It has come on record that when the Investigating Officer reached the hospital, none was available near to the dead body. Respondent was arrested on 10.6.1996. This witness has specifically 12 Criminal Appeal No.442-DBA of 2001 controverted version of the respondent that he had handed over a diary written by the deceased to R.Bali, Wing Cdr., by stating, that above said officer had denied the same. No suggestion was put to this witness that he had recovered the diary etc., however, deliberately failed to put the same with the case file. This witness has also stated that house is situated in a populated area. The respondent and deceased were residing alone in the house. Death is unnatural. Under these circumstances, heavy burden lies upon the respondent to explain the circumstances, under which, death of his wife had occurred. To explain that fact, in his statement recorded under Section 313 Cr.P.C., he has given a fairy tale story, as has been discussed earlier. Reading of his statement and the defence evidence on record, do not inspire any confidence in the plea taken by the respondent. His version that he had intimated PW10, PW11 and Wing Cdr. R.Bali regarding the occurrence which had taken place on 23.5.1996, stood falsified by the statements of above named witnesses. PW9 and PW10 are independent witnesses, have no scores to settle with the respondent. Their statements clearly show that defence version was not believable. As per fact given to Dr.(Sq.Ldr.) A.D.Upadhayay (PW2) by the respondent, he had left his house at 1700 hours and when he came back at 1730 hours, he found his wife lying injured in his house. PW2 has also stated as such in his statement in Court. Above said fact clearly negatived stand taken by the respondent to the contrary that he has left his house at 5.00 am and had gone to meet a friend at Kaithal. To show that he was not 13 Criminal Appeal No.442-DBA of 2001 available in his house, the respondent has produced Ramesh Chander (DW1) and his daughter Shanky Devi (DW7). DW1 has stated that he was supplying milk to the respondent and on 8.6.1996, he had asked his daughter to collect money from the respondent. Reading of the statement made by this witness, indicates that no account was maintained regarding supply of the milk to the respondent or any other consumer. Witness has further stated that he has obtained no permission to keep a Cow, however, no document was brought on record. DW7 has stated that on 9.6.1996, she went to house of the respondent in the morning to recover cost of the milk supplied, however, she was intimated by the deceased that respondent is not available. In cross-examination, this witness has specifically admitted that nobody is allowed to keep cattle by the Air Force authorities. Both the witnesses have also stated that in the evening, DW1 went to the house of the respondent and found it locked. Testimonies of these witnesses are vague, even if those are admitted, the same do not help case of the respondent in any manner. DW7 found the respondent not present in his house in the morning. What happened in between, both the witnesses have failed to explain. To show that on the fateful day, respondent had gone out of the house at 5.00 am to meet his friend, Balbir Singh (DW2) was produced in Court. Respondent and DW2 were not known to each other. It was a chance meeting in a bus. Both happened to be known to D.P.Sanghwal. It is case of the respondent that when he reached Kaithal, D.P.Sanghwal was not available at his house and he came 14 Criminal Appeal No.442-DBA of 2001 back. Testimony of DW2 is not believable. It appears that he was introduced as a witness to support case of the respondent. The respondent has not brought on record any ticket showing fare paid by him to the bus owner to travel upto Kaul (district Kaithal) and coming back to Ambala from that place. What was number of the bus, who was its owner is not mentioned by DW2. Statement of DW5 Dharam Pal (D.P.Sanghwal), renders no help to the case of the respondent. Regarding visit of the respondent to his house, he was intimated by Balbir Singh (DW2). He has never met the respondent. On 9.6.1996, he was not available in his house. He came on leave thereafter. It is very strange that before proceeding to meet above said witness, the respondent had not ensured that the witness was available in his village, as such, the story of absence from the house is not believable. Kartik Dutta (DW3) is brother-in-law of the respondent. He had made an attempt to support imaginary story put up by the respondent in his defence. He is an interested witness, as such, much reliance cannot be placed upon his testimony. Ajit Kumar (DW8) is father of the respondent. He has refuted charges of prosecution regarding demand of dowry and has further stated that he met the Air Force authorities at Ambala brining misdeeds of the deceased and threat perception to the family, to their notice. As has been discussed earlier, official witnesses, namely, Sham Singh (PW9), Master Warrant Officer, Air Force and H.Flying Officer, A.K.Dass (PW10) have not supported his version. 15 Criminal Appeal No.442-DBA of 2001 At the time of arguments, much reliance was placed upon testimony of N.K.Jain (DW4) a handwriting and finger prints expert. As per testimony of this witness, he has compared/ examined standard writing of the deceased with admitted letters sent by her to his parents. Admittedly, all the documents are in Bengali language. This witness has categorically admitted that he cannot read and write Benglo Language. If that is so, it is very strange, how this witness has compared the documents. This witness is totally stranger to the language in question. It is