IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 56-DB of 2000 DATE OF DECISION : 02.02.2009 Ram Avtar .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Harsh Aggarwal, Advocate, for the appellant. Mr. Partap Singh, Senior DAG, Haryana, for the respondent. * * * SATISH KUMAR MITTAL , J. 1. Appellant-Ram Avtar (husband of deceased Dipawali) has filed this appeal. He has been convicted under Section 302 IPC for committing murder of his wife and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/-. The marriage of the deceased with the appellant was solemnized in the year 1992 and the alleged occurrence has taken place on 6.7.1997, within seven years of the marriage. 2. In the present case, FIR (Ex.PE/1) was registered on the statement (Ex.PE) of Prem Singh (PW.9), father of the deceased. In his statement, the complainant Prem Singh stated that he was resident of village Purshotampur and was working as sweeper in Jatusana State Bank. He had Crl. A. No. 56-DB of 2000 -2- solemnized the marriage of his elder daughter Dipawali (deceased) in the year 1992 with Ram Avtar (appellant-accused) resident of village Luhari, as per Hindu rites and customs. A son Navin was born to them. He further stated that on the occasion of Chhuchhak of Navin, when he came to village Luhari, then his daughter Dipawali told him that her husband had illicit relations with one Santosh and he teases her because of that reason. After making his son-in-law to understand, he returned back to his village. But his son-in-law did not stop beating Dipawali. He further stated that he then called his daughter to his house and refused to send her back to village Luhari. Then father of Ram Avtar came and took Dipawali with him. This incident was of the year 1994. But thereafter, his son-in-law still used to beat Dipawali on the asking of Santosh. He further stated that his daughter had come to village Luhari from his house at village Purshotampura about 15 days ago. She was having 8 months old pregnancy. On 6.7.1997, his Samdhi Ram Kumar informed him in village Purshotampura that his daughter, who was to deliver a child, was serious and she wanted to meet him. On that, when he along with his elder brother Jagdish, nephew Hem Chander and his sister's husband Lakhmi Chand, reached village Luhari, he found that his daughter Dipawali was lying dead in burning condition in the house of his son-in-law Ram Avtar. On verification, he came to know that Dhanna son of Gordhan and Parkash (PW.6) son of Subha Chand resident of Luhari had found his son-in-law Ram Avtar beating his daughter Dipawali in the previous night at 11.00 p.m. Thereafter, his son-in-law gave Crl. A. No. 56-DB of 2000 -3- beating to his daughter in an unknown manner and burnt her after pouring kerosene oil on her. Legal action be taken against him. 3. After registration of the case under Section 302 IPC, the inquest report (Ex.PC) was prepared. The dead body of the deceased was found lying in the room. Near the dead body, one empty bottle (Ex.P5) and one stove (Ex.P6) were also lying, which were taken into possession. The rough site plan (Ex.PG) was prepared and thereafter, post mortem of the dead body was got conducted. Dr. Kulprathiba (PW.1) conducted the post mortem of the deceased on 7.7.1997 at 11.15 A.M. She found that there were superficial to deep burns about 95% all over the body, except on the lower 1/3rd part of the left leg and both the feet. Multiple fluid filled vesicles were present over the legs. Peeling-off of skin was present at many places. Singing of scalp hair was present. Kerosene oil smell was present. Marbling of veins was seen on the anterior aspect of both the arms. The burns were ante mortem in nature. During the post mortem examination, it was further noticed that uterus was 28 to 30 weeks. On dissection, a female fetus was extracted out of uterus. Length of fetus was 40 cms. and weight was 1.4 kgs. Period of gestation was 28 to 30 weeks. In the opinion of the Doctor, the cause of death was due to extensive burns and its complications, which were sufficient to cause death in the ordinary course of nature. The accused was arrested on 8.7.1997. 4. After completion of investigation, the challan was filed against the accused. Initially, the charge under Section 302 IPC was framed, but Crl. A. No. 56-DB of 2000 -4- subsequently, alternative charge under Section 304-B IPC was also framed, to which the accused did not plead guilty and claimed trial. 5. In support of its case, the prosecution examined 13 witnesses. PW.1 Dr. Kulpratibha conducted the post-mortem on the dead body of the deceased. PW.2 Surender Constable proved the photographs Ex.P1 and Ex.P2 of the scene of crime. PW.3 Ranbir Singh SI verified the investigation of the case conducted by Sat Narain ASI. PW.4 Sunil Kumar Bhatnagar, Draftsman, proved the scaled site plan Ex.PD, prepared by him on the demarcation of Dhanna. PW.5 Rattan Lal Constable is the formal witness, who had delivered the special reports to the Illaqa Magistrate, SP and the DSP. PW.6 Parkash, a rickshaw-puller, stated that about one year back, at about 9 P.M./9.15 P.M., when he was returning to village Luhari from Gurgaon, he saw accused Ram Avtar raising quarrel with his wife. He further stated that he stayed at that place for about ten minutes and then went back. PW.7 Hoshiar Singh ASI after recording the supplementary statement of complainant Prem and the statement of Lakhmi Chand made addition of the offence under Section 304-B IPC. PW.9 Prem Singh is the complainant in this case. PW.10 Hem Chand is the nephew of complainant Prem Singh. PW.11 Raj Kumar ASI proved the FIR Ex.PE/1. PW.12 Madadin got conducted the post mortem examination on the dead body of deceased Dipawali. PW.13 Satya Narain ASI is the Investigating Officer of the case. All these witnesses deposed in support of the case of prosecution. 6. In his statement under Section 313 Cr.P.C., the appellant- Crl. A. No. 56-DB of 2000 -5- accused denied all the allegations appearing against him in the evidence led by the prosecution. He pleaded innocence and stated that at the time of the alleged occurrence, he was not present in the village in his house. He had gone to village Heli Mandi for playing band. After the death of Dipawali, he was called back by his father from the said village. He further stated that Dipawali suffered burn injuries due to accidental bursting of stove and a false case has been lodged against him, because parents of Dipawali wanted to take money from him, which he had failed to pay. 7. In defence, the appellant-accused examined DW.1 Dhanna, who was named by the complainant as one of the persons, who had seen appellant-accused Ram Avtar giving beating to the deceased. He stated that accused Rav Avtar neither misbehaved with his wife nor gave beating to her in his presence. The police never met him and never recorded his statement in connection with this case. DW.2 Ram Kishan stated that on the day of occurrence, the accused was playing band with him in a marriage party in Pataudi. He remained with him from 5.00 p.m. to 11.00 p.m. Thereafter, a resident of village Luhari came there and told that wife of Ram Avtar had got burnt. Then, he immediately went along with him. 8. The trial court, after considering the evidence led by the prosecution as well as the defence, acquitted the accused of the charge under Section 304-B IPC, while coming to the conclusion that the prosecution has failed to establish that the deceased was subjected to cruelty on account of demand of dowry just before her death. However, the accused Crl. A. No. 56-DB of 2000 -6- was convicted for the offence under Section 302 IPC, while holding that the prosecution has been able to prove beyond doubt that he caused the murder of his wife Dipawali. Hence, the instant appeal has been filed. 9. Shri Harsh Aggarwal, learned counsel for the appellant has submitted that in the instant case, there is no direct evidence, which proves that the appellant caused death of his wife by pouring kerosene oil and putting her on fire. He further submitted that even there is no evidence to the effect that the deceased was given beating by the appellant. Learned counsel argued that in this regard, the prosecution cited two witnesses, namely Dhanna and Parkash. Dhanna was given up by the prosecution being won over by the accused and he was later on examined by the accused in his defence as DW.1. Parkash has been examined by the prosecution as PW.6. Learned counsel submitted that in his statement, PW.6 Parkash had not supported the prosecution version that on the day of occurrence, he had seen the accused giving beating to his wife. Learned counsel further argued that even the statement of PW.1 Dr. Kulpratibha, who conducted the post mortem examination on the dead body of the deceased, further strengthens the defence of the accused, when she stated that she did not notice any external injury on the body of the deceased. Learned counsel submits that if the accused would have caused the death of the deceased by pouring kerosene oil and putting her on fire, then the deceased could have struggled and tried to save herself from the hands of the accused. Learned counsel submits that all these facts clearly indicate that at the time of the alleged Crl. A. No. 56-DB of 2000 -7- occurrence, the appellant was not present in the house and his wife Dipawali having some false suspicion in her mind regarding his illicit relations with one Santosh had committed suicide by pouring kerosene oil and putting herself on fire. Learned counsel argued that the instant case is based only on circumstantial evidence, the chain of which is not complete. He submits that from the circumstantial evidence, available on the record, the inference of guilty of the accused cannot be drawn. He submits that it is well settled that the circumstances from which the inference as to the guilt of the accused is to be drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances, which is not the position in the instant case. Therefore, conviction of the appellant under Section 302 IPC on the basis of the incomplete and inclusive circumstantial evidence is not sustainable and he deserves to be acquitted on the principle of benefit of doubt. 10. On the other hand, Shri Partap Singh, Senior Deputy Advocate General, Haryana, learned counsel for the respondent-State has argued that in the instant case, the prosecution has fully proved its case beyond a reasonable doubt. He submits that the evidence led by the prosecution has categorically established that on the night of 6.7.1997 at about 11.00 p.m., the accused was present in his house at the time of the alleged occurrence and he committed the alleged offence and thereafter, ran away from the place of occurrence. PW.13 Satya Narain ASI, the Investigating Officer of the case, in his statement has stated that during investigation, it came to his Crl. A. No. 56-DB of 2000 -8- notice that after committing the crime, the accused had run away from his house. Learned counsel further pointed out that PW.6 Parkash, who is an independent witness, has categorically stated in his statement that on the day of occurrence at about 9.00 or 9.15 P.M., he saw that the accused was quarreling with his wife, when he was coming towards village Luhari from Gurgaon. From the statement of this witness, it has been categorically established that just before the occurrence, the appellant was seen in his house with the deceased. Learned counsel further pointed out that the couple was residing in one room house with a courtyard and the dead body of the deceased was found in the room, which according to the site plan is a small room. Learned counsel submits that once it has been established that the deceased has died in the house and just before the time of the alleged occurrence, the appellant was seen with his wife in his house, then it is for the appellant to explain how the occurrence has taken place. Learned counsel submits that the plea given by the appellant that he was not present in the house and was present at Pataudi along with DW.2 Ram Kishan has not been established, as there are material contradictions in the defence, taken by the appellant-accused and the statement of DW.2. Learned counsel also pointed out that the stand taken by the appellant that due to bursting of the stove the deceased caught fire and died cannot be accepted, as the stove (Ex.P6) was recovered from the spot not in a bursting condition, but it was found in working condition. The empty bottle (Ex.P5) of kerosene oil was also recovered from there. Learned counsel submits that in the case, though Crl. A. No. 56-DB of 2000 -9- there is no direct evidence, but from the chain of circumstantial evidence, the prosecution has fully established the guilt of the accused. Therefore, the trial court has rightly convicted the appellant under Section 302 IPC. 11. After hearing learned counsel for the parties and going through the record of the case, we do not find any merit in this appeal. In this case, it is admitted position that after solemnization of marriage of the appellant with the deceased in the year 1992, the couple was residing at Luhari in the one room house, where the alleged occurrence has taken place on 6.7.1997. As per the medical evidence, it has been established that the deceased died due to burn injuries and at that time, she was having a pregnancy of 8 months. During the post mortem examination, a female fetus was found. The burn injuries were 95% on the whole body of the deceased, except on the lower 1/3rd part of the left leg and both the feet. The dead body of the deceased was found in the room. As per the statement of PW.9 Prem Singh, father of the deceased, after the marriage, relations between the deceased and the appellant were not cordial. The deceased was given beating by the appellant on the asking of Santosh, with whom he was having illicit relations. Though this witness has alleged demand of scooter, but the harassment of the deceased on account of demand of dowry by the appellant just before her death has not been established. However, from the statements of the prosecution witnesses, it has been proved that the appellant used to give beating to the deceased. From the statement of PW.6 Parkash, a resident of the village, it has been proved that on the previous Crl. A. No. 56-DB of 2000 -10- night of the day of occurrence, at about 9/9.15 P.M., the appellant was quarreling with his wife. In his examination-in-chief, he has categorically stated that when he was coming back towards village Luhari from Gurgaon, he saw accused Ram Avtar quarreling with his wife. In the cross- examination, the witness has not supported his earlier statement while stating that he had not seen the appellant beating his wife. PW.13 Sat Narain ASI, the Investigating Officer in the case, in his statement before the Court has categorically stated that during investigation, it was told in the village that the accused had absconded after the incident. This witness had also prepared site plan Ex.PG with correct marginal notes and also lifted a stove (which was in working condition) and a bottle from the spot, which were exhibited as Ex.P6 and Ex.P5, respectively. 12. From the aforesaid evidence, it has been established that on the day of the alleged occurrence, the appellant was present in his house. According to PW.6 Parkash, he was last seen with the deceased at 9/9.15 P.M. on that day. The appellant, in his statement under Section 313 Cr.P.C., took the plea that at the time of the alleged occurrence, he was not in the village, as he had gone to Heli Mandi for playing band and was called back by his father from the village after the death of Dipawali. The evidence led by the appellant to prove this fact goes contrary to this version on material aspects. According to DW.2 Ram Kishan, on the day and time of the alleged occurrence, the appellant was with him and they were playing a band in a marriage party at Pataudi. Pataudi and Heli Mandi are two different towns in Crl. A. No. 56-DB of 2000 -11- Haryana. This witness further stated that the appellant remained with him from 5.00 P.M. to 11.00 P.M. A resident of village Luhari came there and told the appellant that his wife had caught fire. Immediately thereafter, the appellant went along with him. On the other hand, in his statement under Section 313 Cr.P.C., the appellant stated that when he was playing band with Ram Kishan (DW.2) at Heli Mandi, he was called by his father after the alleged occurrence. This false plea taken by the appellant goes against him. It is well settled, as held by the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC (Criminal) 487, that a false plea or a false defence taken by the accused can be used as an additional link to the chain of circumstantial evidence against the accused. In the instant case, though there is no direct evidence, but all the circumstantial evidence available on the record has satisfactorily proved the guilt of the accused without a reasonable doubt. The death by burning has taken place at night in the house of the appellant. He was last seen with the deceased at night by PW.6 Parkash and soon thereafter, within two hours, the death by burning has taken place. In these circumstances, it is for the appellant to explain under what circumstances, the deceased has died due to burning and how the incident had taken place. Though under Section 101 of the Indian Evidence Act, it is for the prosecution to prove guilt of the accused beyond reasonable doubt, but there is an exception (Section 106) to the general rule contained in Section 101 of the Evidence Act. In a case where the dead body of the wife was found in the room inside the house of the accused, the Crl. A. No. 56-DB of 2000 -12- burden was on the accused to explain how she had died. It is well settled that in appropriate cases, the court can draw the presumption against the husband to explain unless he explains otherwise. In Shummugasundaram v. State 1997 Criminal Law Journal 499, the Madras High Court, while relying upon the judgment of the Supreme Court in Shambhoo Nath v. State of Ajmer, AIR 1956 SC 404 held that where the accused husband alone was present with the deceased at the time and place of offence and he absconded soon after the incident, he was bound to explain the fact, it being in his special knowledge and in the absence of any explanation the only possible inference would be that he participated in the act. In the instant case, the appellant, who was last seen with the deceased and according to the statement of PW.13 Sat Narain ASI, during the investigation, it came that the accused soon after the occurrence left the spot and the deceased died in the night in the house of the appellant. Therefore, it is for the appellant to explain under what circumstances, his wife died in his house. The explanation given by the appellant in his statement under Section 313 Cr.P.C., has been proved to be incorrect, because statement of DW.2 clearly goes contrary to the plea taken by the appellant. 13. Thus, we are of the opinion that the prosecution has fully proved the guilt against the appellant beyond shadow of a reasonable doubt and the trial court, in our view, has rightly convicted the appellant. 14. During the course of arguments, learned counsel for the appellant argued that it was a case of suicide and at the most, the appellant Crl. A. No. 56-DB of 2000 -13- can be punished under Section 306 IPC with the aid of presumption as to abatement of suicide by a married woman within seven years of her marriage, as contemplated under Section 113-A of the Indian Evidence Act, because he used to quarrel and harass his wife on account of his illicit relations with one Santosh, which can be termed as `cruelty' within the meaning of explanation to Section 113-A of the Evidence Act. We do not find any substance in this argument. From the prosecution evidence, available on record, the instant case does not appear to be a case of suicide. At the time of the alleged occurrence, the deceased was having the pregnancy of 8 months and it is improbable that a woman in such condition will commit suicide at the night time. Even in his statement under Section 313 Cr.P.C., the appellant has not pleaded the instant case as a case of suicide. He has pleaded that his wife caught fire due to accident, due to the bursting of the stove. Homicidal death by burning has not been established from the evidence available on record. Not only a stove was recovered from the place of occurrence, but an empty bottle was also recovered. It was not a case of accidental burning. The smell of kerosene oil was noticed at the time of the post mortem. From top to bottom, except the lower 1/3rd part of the left leg and both the feet, there were burn injuries upto 95% on the body of the deceased. All these factors do not indicate the instant case as a case of suicide. Therefore, the contention of the learned counsel that the appellant, at the most, can be convicted under Section 306 IPC by raising the presumption as to abatement of suicide by a married woman is not tenable, Crl. A. No. 56-DB of 2000 -14- and the conviction of the appellant under Section 302 IPC by the trial court, in our opinion, does not require any interference. 15. Consequently, the instant appeal is dismissed and the appellant, who is on bail, is directed to surrender to custody to serve the remainder of sentence. ( SATISH KUMAR MITTAL ) JUDGE February 02, 2009 ( DAYA CHAUDHARY) ndj JUDGE