Criminal Appeal No. 302-DB of 1999 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 302-DB of 1999 Date of decision : 7.5.2008 Jagbir .....Appellant Versus State of Haryana ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Arshwinder Singh, Advocate for the appellant. Mrs. Naveen Malik, Addl. Advocate General, Haryana. *** S. D. ANAND, J. Appellant Jagbir was convicted by the then Learned Sessions Judge, Gurgaon under Section 302 IPC and ordered to undergo imprisonment for life. The charge, upheld at the trial, was that he had murdered his own wife Mst. Munesh, on the night intervening 14- 15.4.1997. For enabling precise appreciation of the controversy, it would be appropriate to indicate facts in the first instance. Munesh daughter of PW-12 Lal Ram was married to the Criminal Appeal No. 302-DB of 1999 -2- *** appellant on 4.6.1996. On her visit to the natal house, she informed her mother (PW-13 Mst. Samtra and her sister-in-law PW-14 Krishna) that the appellant had indicated a grievance that a scooter ought to have been given in dowry. She had also been telling PW-14 Krishna (sister-in-law of the deceased lady) that appellant Jagbir had illicit relations with his sister-in- law i.e. Sunita wife of Mangal (real brother of Jagbir appellant). On the night intervening 14/15.4.1997 at 2.00 A.M., Mangal (elder brother of Jagbir) came over to the natal house of deceased lady and informed her father that she had been admitted to Safdarjang Hospital, Delhi as she was complaining of pain in abdomen. Lala Ram accompanied Mangal in latter's car. Then, Mangal told Lal Ram that clothes of Munesh caught fire when she was in the process of putting on a fan. On reaching Safdarjang Hospital, they found Munesh had been taken to Ram Manohar Lohia Hospital, Delhi. When they reached there, Ram Jas (father of appellant Jagbir) informed Lala Ram that Munesh had died. The inquest proceedings, by the Sub Divisional Magistrate, Delhi followed. In the course thereof, Lala Ram made a statement that he had no grievance/complaint in the context of death of Munesh. However, when he went to the spot on 16.4.1997, he noticed certain facts over there and entertained a feeling that Munesh had been set afire. He notified his apprehension to the Police. PW-1 Dharam Pal and PW-2 Rai Singh were the two persons before whom appellant had made an extra-judicial confession. PW-3 Constable Sarwan Kumar, a Draftsman in the S.P. Office, Gurgaon, had Criminal Appeal No. 302-DB of 1999 -3- *** prepared scaled site plan of the spot on 12.6.1997 on the pointing of Lala Ram PW-12. PW-4 Head Constable Ram Tirth, PW-5 Constable Rashid Mohammad tendered their affidavits containing averments of formal character into evidence. PW-6 HC Des Raj ( posted at Police Station, Farrukhnagar on 15.4.1997) had received a wireless message and had gone over to General Hospital, Gurgaon, where he moved an application (Ex. PD) before the Medical Officer for an opinion regarding fitness of Munesh to make a statement. The Medical Officer made an endorsement thereupon that Munesh had already been referred to Safdarjang Hospital, Delhi. When HC Des Raj moved that very application before the Medical Officer, Safdarjang Hospital, Delhi, it was reported that Munesh was not admitted to that hospital. PW-7 Dr. S.K. Sharma, Medical Officer, General Hospital, Gurgaon, had medico-legally examined Munesh on her initial arrival over there- before being referred to Safdarjang Hospital, Delhi, and had found that “Patient was conscious and had 100 percent dermo-epidermal burns all over the body including face, shoulders, extremities and abdomen. The burns noted in this case could not be as a result of electric burn.” After recording of DDR (copy whereof is Ex. PG) by HC Virender Singh qua the hospitalisation of Munesh into the Ram Manohar Lohia Hospital, PW-8 ASI Jagdish Parshad moved application Ex. PH before the Medical Officer to find out whether Munesh was fit to make a statement. The Medical Officer, attending upon Munesh, made endorsement Ex. PH/1 on the application that Munesh was unfit to make a statement. She died thereafter on 15.4.1997. On receipt of that information, DDR No. 3 ( Ex. PJ) dated 15.4.1997 was recorded by HC Criminal Appeal No. 302-DB of 1999 -4- *** Virender Singh. After telephonically intimating the death of Munesh to Sub Divisional Magistrate, New Delhi, ASI Jagdish Parshad got post- mortem examination conducted on the dead body of Munesh under the orders of S.D.M., New Delhi. PW-9 Kartar Singh, Record Clerk of Ram Manohar Lohia Hospital, New Delhi made a record based statement to the effect that Munesh, who was admitted to Hospital on 15.4.1997 at about 4.20 A.M., had died on 15.4.1997 at 5.25 A.M. PW-10 ASI Attar Singh, then posted at P.S., Farrukhnagar, had recorded formal FIR Ex. PL on receipt of Ex. PA from SI Shamsher Singh. PW-11 Ashok Kumar, photographer, Kherki Daula, proved photographs Ex. Pl to Ex. P8 and their negatives Ex. P9 to Ex. P16. PW-12 Lala Ram and PW-13 Mst. Santra are parents of the deceased lady. PW-14 Krishna is her sister-in-law (brother's wife of deceased lady Munesh). PW-15 Constable Sushil Kumar had attested memo Ex. PN, vide which the viscera of Munesh deceased was taken into possession. PW-16 SI Shamsher Singh had partly investigated this case inasmuch as he had recorded statement Ex. PK of Lala Ram on 19.4.1997 and forwarded it to the Police Station, with his endorsement Ex. PK/1. He inspected the spot and prepared the rough site plan Ex. PO, on the pointing of Lala Ram. He also got the spot photographed. He further got the scaled site plan prepared from the Draftsman and arrested appellant Jagbir on 1.5.1997. PW-17 Dr. Viney Kumar Singh had, alongwith Dr. Yashodha Rani, conducted the post-mortem examination on the dead body of Munesh wife of appellant. PW-18 SI Kali Charan had taken the dead body of Munesh from Ram Manohar Lohia Hospital, Delhi to Lady Harding Medical College, New Delhi, for getting the post-mortem examination Criminal Appeal No. 302-DB of 1999 -5- *** conducted over there. PW-19 Pankaj Sudhan, who was posted as S.D.M., Parliament Street, New Delhi on 18.4.1997, had recorded the statement (Ex. PM) of Lala Ram PW 12 and also that of Surjan Singh, Likhma Singh, Ex- Sarpanch, Sumer Singh, Ishwar Singh, Jagbir Singh and Ram Jas. The appellant raised a pure and simple plea of innocence and pleaded for exoneration from liability with the following averment in the course of the statement under Section 313 Cr.P.C.:- “I am innocent. On 14.4.97 at 10.11 p.m. I was sleeping in the adjoining room at my house while my wife was sleeping in the other room. At about 10/1.00 p.m. I heard the cries of Munesh I rushed to that room where my wife was sleeping. My other family members also rushed to that room. We noticed that clothes of my wife had caught fire. I picked up a quilt and in order to put of the fire put the quilt on her. Thereafter, I immediately arranged for a car. One Dharampal of our village had also come to the spot Munesh had informed Dhjarampal during the period I had gone to fetch the car that due to summer she had put on the fan and her clothes caught fire due to short circuit. I immediately took her in the car to Civil Hospital, Gurgaon. Authorities of Civil Hospital, Gurgaon referred my wife to Safdarjang Hospital, but I took her to RML Hospital, New Delhi. I was having very good relations with my wife. There was no dispute whatsoever with my wife on any account.” The appellant did not adduce any evidence in defence. Criminal Appeal No. 302-DB of 1999 -6- *** On appraisal of the material obtaining on the file, learned Trial Judge upheld the prosecution presentation that Munesh had been done to death by the appellant who set her afire. Learned Trial Court also upheld the allegations pertaining to the dowry-related torture and also the averment that the appellant had illicit relations with the wife of his brother Mangal. Appellant's plea of false implication was negatived. Mr. Arshwinder Singh, learned counsel who made the presentation on behalf of the appellant, had the following criticism to level on the impugned judgment in his bid to obtain invalidation of the impugned finding:- 1) There being no substantive evidence to prove the extra- judicial confession, the benefit of doubt ought to have been given to the appellant. In the context, it is pointed out that two persons (PW1 Dharam Pal and PW2 Rai Singh), before whom the alleged extra judicial confession had been made, did not support the prosecution plea. 2) The possibility of deceased having sustained electric burns cannot be ruled out. Our attention, in support of that averment, is invited to the statement made by Dr. S.K. Sharma PW-7 to the effect that “I can only say that burns were due to flames. But I cannot say whether that flame was a result of ignition due to electrical.” 3) The deceased was carrying six months old foetus from the lions of the appellant (Jagbir) who, on that account, had no reason to eliminate her. In that context, it is also argued that Criminal Appeal No. 302-DB of 1999 -7- *** there is no evidence on the file that appellant had any motive to do way with his wife. Insofar as the item no. 1 of the criticism segment is concerned, we find it to be plainly illogical. The present is not a case in which prosecution presentation was exclusively based upon the extra judicial confession. Though it is obvious that PW1 Dharam Pal and PW-2 Rai Singh did not support the prosecution plea, were declared hostile and were cross-examined on behalf of the prosecution, that cannot be said to be the end of the road for the prosecution. At the same time, we cannot be unmindful of the other material obtaining on the file which, as we would notice in the paras to follow, is sufficient to enable this Court to affirm the impugned finding of conviction. Coming to the criticism (item no. 2), we find it equally devoid of force. The statement of a witness had to be appreciated in its totality. One particular sentence of a statement cannot be picked up and appreciated in isolation from the other part of the testimony. It may be noticed here that, in the course of examination-in-chief itself, PW-7 Dr. S.K. Sharma had categorically indicated that “Patient was conscious and had 100 percent dermo-epidermal burns all over the body including face, shoulders, extremities and abdomen. The burns noted in this case could not be as a result of electric burn.” In the course of cross-examination as well, he averred that “I can only say that burns were due to flames. But I cannot say whether that flame was a result of ignition due to electrical.” It was only when he was further pressed that he blurted out that “The burns noted were thermal (flame burns) and could not be caused by electric shock” As Criminal Appeal No. 302-DB of 1999 -8- *** correctly observed by learned Trial Judge, Dr. S.K. Sharma had not given any affirmative opinion that burns could have been sustained by Munesh due to electrical ignition. All that he had stated and that too under repeated questioning, was that he could not say whether the flames were a result of electrical ignition or not. The statement of Dr. Sharma, as relied upon by the learned counsel for the appellant, is not exactly supportive of the advocated plea. It is in the testimony of Dr. Viney Kumar Singh (who had conducted post-mortem examination on the dead body of Munesh) that the deceased lady was six months pregnant. The plea advocated can work both ways. If the lady was carrying six months foetus, there is no understandable reason why she would have commited suicide. Insofar as the causing of fire by electrical flames is concerned, the relevant plea already stands negatived. We do not, however, accept the reasoning recorded by the learned Trial Judge for accepting the evidence pertaining to dowry-related torture and illicit relationship between the appellant and his sister-in-law. In this context, we have to point out that the demand of a scooter saw the light of the day, for the first time, in the statement of PW-13 Mst. Santra. It is not even her plea that she had ever brought that fact to the notice of her husband PW-12 Lala Ram. Qua the other allegation, PW-14 Mst. Krishna testified that though Munesh had been telling her about the illicit relationship between the appellant and Sunita, she told her mother-in-law about that fact only after the death of Munesh. Apart therefrom, she conceded that she did not mention that fact in her statement to the police. Criminal Appeal No. 302-DB of 1999 -9- *** She also conceded that she had also not told the police that the fact afore- mentioned had been brought by her to the notice of her mother-in-law (PW-13) after the death of Munesh. If there was even an iota of truth in the relevant allegations, there is no reason why PW-13 Mst. Santra and PW-14 Mst. Krishna would not have brought the relevant facts to the notice of PW- 12 Lala Ram who had himself informed S.D.M., Delhi, that he had no grievance against any one. We are clear, in our mind, that the relevant allegations are unfounded and are a figment of imagination of the members of the natal family of Munesh who would like to ensure that appellant is made to pay with his life for the death of Munesh. At the same time, this observation does not enable the appellant to get away from his legal accountability in respect of death of none-else or other than his own wife at the matrimonial house itself, within less than a year of the marriage. On his own showing, the appellant had a normal relationship with his deceased wife. He has not uttered a word to explain why, then, he was sleeping in a room different from the one where Munesh was sleeping during the night. In the normal course of things, both the spouses are expected to share a bed room. The contrary has to be averred and explained. No explanation whatsoever is forthcoming on the file of the present case. We feel justified, in the light of the facts available on the file, to hold that it was the appellant who set Munesh afire. He cannot escape liability for the death of his wife Munesh. Learned Trial Judge very correctly recorded that an effort had been made by Mangal (brother of appellant Jagbir) to mislead Lala Ram PW-12 (father of Munesh). Initially, Mangal informed Lala Ram that Criminal Appeal No. 302-DB of 1999 -10- *** Munesh had been admitted to the Safdarjang Hospital, Delhi, as she was complaining of pain in abdomen. It was only on arrival at Safdarjang Hospital, Delhi, that Mangal informed Lala Ram that Munesh had actually caught fire when she was in process of putting an electric fan on. Here, thus, is a case in which Lala Ram had attributed a particular role to Mangal. It is only Mangal who could have conceded or denied the same by entering the witness box. As correctly noticed by the learned Trial Court, the refrain on the part of Mangal from entering the witness box justifies an inference that the role attributed to him by Lala Ram had not been contradicted. Munesh having sustained 100% burns could not make a statement before the Police. Efforts were made to obtain her statement at General Hospital, Gurgaon, and Ram Manohar Lohia Hospital, Delhi. The Medical Officer at the former institution informed the police that patient had been referred to Delhi; while the Medical Officer available at the latter institution declared that Munesh was not fit to make statement. Inability on the part of the investigating agency in obtaining a statement from Munesh does not, at all, enure for the benefit of the appellant in view of the fact that Munesh died at the matrimonial house itself within less one year of the marriage while she was carrying a six months foetus and in view of the evidence of Dr. S.K. Sharma that “Patient was conscious and had 100 percent dermo-epidermal burns all over the body including face, shoulders, extremities and abdomen. The burns noted in this case could not be as a result of electric burn.” After having grappled with the seriously pressed objections, Criminal Appeal No. 302-DB of 1999 -11- *** we crystalise our conclusion to the effect that appeal is without any merit and we dismiss the same. ( S. D. ANAND ) JUDGE May 07, 2008 (ADARSH KUMAR GOEL) Pka JUDGE