Crl.A.No.127 DB of 2006 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl.Appeal. No. 127-DB of 2006 Date of Decision: January 28, 2008 Dharam Chand & others ...... Appellants Versus State of Punjab Respondent Coram: Hon'ble Mr.Justice Adarsh Kumar Goel Hon'ble Mr.Justice S.D.Anand Present: Mr. Vinod Ghai, Advocate for the appellants Mr.Sunil Chadha, Advocate for the complainant Mr.Rajesh Bhardwaj, DAG Punjab ** Adarsh Kumar Goel, J. The appellants challenge their conviction under Sections 302/149 IPC for which they have been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- each, in default, to undergo further RI for one year each. They also challenge their conviction under Section 143 IPC for which they have been sentenced to undergo rigorous imprisonment for six Crl.A.No.127 DB of 2006 2 months each which is to run concurrently. The case of the prosecution is that on 28.10.2000 at 7.00 a.m. Vipan Bedi, PW3 received a telephonic call from deceased Shama that family member of her in laws were beating her and torturing her for not bringing Scooter. Shama was cousin of Vipin Bedi (daughter of sister of his father) and had been married to appellant Rajiv Sehgal one and a half year prior to the occurrence. She had eight months old daughter Bhumika. She was being maltreated on account of demand of dowry. Vipin Bedi, his father Jaswant Bedi and Uncle Kulwant Rai Bedi were living nearby, while parents of Shama were in a different city i.e. Amritsar and they tried to make in- laws of Shama understand many times to refrain from maltreating her. About 20 days prior to the occurrence, Shama came to their house and told Vipin Bedi and his father that her husband and other family members were demanding Scooter and threatening her that if scooter was not brought, she and her daughter will be done to death. On 28.10.2000, at 7-00 A.M., Shama telephoned Vipin Bedi that she was being beaten by her in-laws. After receiving telephonic call, at 8.30 a.m., Vipin Bedi, along with his cousin ( son of sister of his father) Rohit, who was also residing nearby went to the house of Shama. They went to Chaubara (room on the first floor) and saw that Shama had been caught hold by her Crl.A.No.127 DB of 2006 3 parents in law. Rajesh Sehgal @ Sonu younger brother of Rajiv Sehgal was pouring kerosene oil on her and Deepak Kumar elder brother of Rajiv Sehgal was holding Bhumika and saying that she be also eliminated. Rajiv Sehgal was carrying match stick in his hands and put the clothes of Shama on fire. He also put Bhumika on fire. Thereafter, they closed the door of the room from outside, pushed the witnesses and fled away from there. Vipin Bedi and Rohit raised alarm. Many people assembled there. They broke open the door of the room and found Shama and her daughter dead with burn injuries. Mohalla people gave telephonic call to the Fire Brigade. Fire Brigade personnel visited the spot. Vipin Bedi proceeded to inform the police leaving Rohit on the spot. He met ASI Balbir Singh, PW6 on the way, who recorded the statement of Vipin Bedi, Ex.PA at 1.15 p.m. which led to registration of FIR at 1.45 p.m. ASI Balbir Singh went to the place of occurrence, took into possession double bed, bed sheet,mats, pillows which were half burnt. One plastic can and one match box were also recovered by him. He prepared inquest report, and sent the dead bodies for post mortem examination. He also prepared rough site plan and also took other steps for investigation. Dr.S.K.Sharma, Civil Hospital, Ludhiana PW5 conducted post mortem on the dead body of Shama aged 25 years on 28.10.2000 at 4.00 p.m. He found 100% burns over the body. Crl.A.No.127 DB of 2006 4 He also found 6th and 7th rib on the left side fractured and lung ruptured in the middle. The cause of death was asphyxia and injury to chest and extensive burns. The injuries to chest and burns were ante-mortem and sufficient to cause death in ordinary course of nature. Time between injury and death was 5 to 10 minutes and between death and post mortem was within 12 hours. On the same day, at 4.30 p.m., he conducted post mortem on the dead body of Bhumika 8 months old child. She had superficial deep burns all over the body. Cause of death was due to asphyxia and shock as a result of burns which was ante mortem and sufficient to cause death. After investigation the accused were sent up for trial. The prosecution examined ASI Baj Singh,PW1, Harinder Pal, PW2, Vipin Bedi PW3, Rohit Malhotra, PW4, Dr.S.K.Sharma PW5, ASI Balbir Singh, PW6, SI Jaswinder Singh, PW7. The accused denied the prosecution allegations. Dharam Chand appellant took the plea that he was employee of the Railways. He never demanded any cash or scooter. He was on night duty on the intervening night of 27 and 28.10.2000 from 12.00 midnight and was not present at the time of occurrence. He owned and possessed a scooter. He was a patient of diabetes and Crl.A.No.127 DB of 2006 5 was using cycle to go for his duty. Sudesh Kumari also pleaded that she never demanded cash or scooter. Deepak, her son with his wife and children had gone to the house of brother of his wife for tika on Bhai Duj. Rajiv had gone to market. Sonu @ Rajesh had gone to the shop. Shama was feeding milk to Bhoomika in her room. Sudesh Kumari was on ground floor. She noticed smoke coming out of the room on the first floor. She went upstairs and found that door was bolted from inside. She raised hue and cry to inform mohalla. They gave phone calls to the police and fire brigade. Fire brigade extinguished the fire after breaking the lock of the room. The police called Vipin Bedi. She was taken to the Police Station on the same day but was falsely shown to have been arrested on 31.10.2000. Deepak Kumar pleaded that he was separate in business, residence and mess from his father. He was running Karyana shop. He possessed a scooter . Rajiv Sehgal pleaded that he never demanded any cash or scooter from Shama and never maltreated Shama. He was running Karyana shop in one room on the ground floor. He owned Scooter. He had opened recurring account in the post office jointly in his own name and in the name of his wife on 23.10.1999 and was depositing the amount in the said account till 19.10.2000. He had also opened a recurring account in the name of his daughter after her birth and was depositing money till 19.10.2000. He also purchased Kisan Vikas Crl.A.No.127 DB of 2006 6 Patra jointly in his own and in the name of his daughter for Rs.6000/- and in his own name and and his wife's name jointly for Rs.10,000/-. He was also falsely implicated under the influence of R.K.Bedi, retired SSP, Narinder Bedi, DSP and Dalip Bedi, Inspector who were related to Vipin Bedi. Rajesh Sehgal @ Sonu pleaded that he was employee in a commercial concern and had gone for his job. He was not present at the time of occurrence. He was using his father's scooter. He never demanded scooter and cash from the deceased. The accused examined Chatter Pal Singh, Loco Foreman DW1, Paramjit Kaur, Clerk DTO office DW2, Jawahar Lal, Supdt., Railway Loco Shed, Stock and Store Office DW-3 Buta Ram Clerk, Head Post Office DW4, T.R.Malhotra Sub Post Master, Netaji Nagar, Ludhiana DW5, Tarlochan Singh, Sub post Master, Bharat Nagar Post Office, Ludhiana DW6, Rajinder Kumar Sharma, Public Relations Officer DW7 and Kapil Kapoor DW8. After considering the evidence on record, the trial Court held that the prosecution failed to prove the case beyond reasonable doubt. The substance of findings and observation of the trial Court is as under:- (i)The evidence of PW3 Vipin Bedi was Crl.A.No.127 DB of 2006 7 reliable and was corroborated by his cousin PW4 Rohit Malhotra. They were relatives of the deceased. They could not be treated as chance witnesses. Their not having been able to intervene, was not enough to disbelieve them. The fire was very severe and room being small, their intervention may not have been possible. From the supplementary statement of PW3, Vipin Bedi Ex.D1, it was clear that Shama had been given injuries earlier and then put on fire. She was not fluttering. When the witness arrived PW3 Vipin Bedi himself became semi conscious. His supplementary statement could not be considered as an after-thought. (ii)As per the post mortem report, 6th and 7th ribs of left side of the deceased were fractured and lung was ruptured. (iii)There was no delay in lodging the FIR. The fire brigade came at 11.00 a.m. It took half an hour to extinguish fire. Statement of Vipin Kumar was recorded at 1.15 p.m. A copy of the FIR reached the Chief Judicial Magistrate at 4.00 p.m. on the same day. iv) Failure of the Investigating Officer to prepare site plan showing the place from where the witnesses saw the occurrence did not discredit the prosecution case. v)Non-examination of Devinder Singh, Crl.A.No.127 DB of 2006 8 Senior Fire Officer was not fatal to the case of the prosecution. (vii)Opening of recurring deposit account did not mean that the deceased was not being harassed. (vii)The plea of alibi taken by Dharam Chand was not proved. Evidence of Kapil Kakar DW8, brother-in-law of Deepak Kumar was not reliable. There was conflict in the version given by Rajiv Sehgal and suggestion given to PW-1 Baj Singh, ASI. He took plea that he had gone to market to purchase karyana material but suggestion was given to PW1 ASI Baj Singh that he had gone to deposit electricity bills. Rajesh Sehgal failed to prove that he had gone for duty. Duty of Dharam Chand was from 12.00 p.m. night to 8.00 a.m. and was over by the time the occurrence took place. We have heard the learned counsel for the parties and perused the record. Learned counsel for the appellant submits that evidence of PW3, Vipin Bedi and PW4 Rohit Malhotra was not reliable. The allegation of demand of dowry was general and vague and no complaint had earlier been filed. The accused already had scooters and were making deposit in the name of deceased. The version given by the witnesses was not probable that they saw the accused participating in the occurrence in the Crl.A.No.127 DB of 2006 9 manner alleged. The witnesses would have certainly intervened and would not have allowed the accused to escape from small staircase. The occurrence took place at 8.30 a.m. while the FIR was lodged at 1.15 p.m. The injury took place on door being broken open which fell on the deceased. The plea of alibi was proved. Learned counsel for the State supported the conviction of the appellants. It is well settled that the burden to prove guilt of the accused is on the prosecution. The degree of proof required need not reach certainty but must carry high degree of probability. The Court has to judge the evidence by the yardstick of probabilities. Evidence of relations cannot be rejected if the same is otherwise reliable. Minor discrepancies due to normal errors of observation, memory, mental disposition do not affect credibility of evidence. It is well known that general public is not willing to get involved as witnesses in the criminal cases. Inspite of such a handicap, the Court has to assess the evidence led pragmatically. Reaction of witnesses vary from individual to individual. Kith and kin of the deceased faced with a tragedy are not expected to act mechanically with all promptitude in giving the report to the police. In the present case, the question is whether the Crl.A.No.127 DB of 2006 10 version given by PW3 Vipin Bedi and PW4 Rohit Malhotra is reliable. According to PW3 Vipin Bedi, he received telephonic call at 7.00 a.m. and went to the house of the accused at 8.30 a.m. and found that parents in law of the deceased had caught hold of her arms, Rajesh @ Sonu was sprinkling kerosene oil on the body, Deepak Sehgal was holding the daughter and was threatening to finish her and Rajiv Sehgal lighted the match stick and set Shama on fire and threw the child on the bed. The witness had not heard the shrieks of the deceased and he suspected that she had already been given injuries prior to setting her on fire. Same is the version given by PW4 Rohit Malhora. In cross-examination, PW3 Vipin Bedi stated that he tried to snatch the match box but before he could reach the accused, he had set the deceased on fire. He poured 2-3 buckets of water but could not extinguish the fire. The width of the staircase is about 2/2.50 feet and there is only one stair. He saw the occurrence from the distance of 10/12 feet. The accused was standing between bed and door of room. Kerosene was poured in his presence from the head to the entire body. He tried to grapple with the accused but after fire was set he could not do anything till 11.00 a.m. till arrival of fire brigade. He tried to extinguish fire. Nobody came on hearing the alarm. Crl.A.No.127 DB of 2006 11 Following circumstances stand clearly established:- (i)The death of the deceased was neither accidental nor suicidal but homicidal. (ii)Plea of alibi raised by the accused is not reliable. (iii)All the accused were living in the same house and husband of the deceased was living in the same room. (iv) Offence of such a magnitude and gravity could not have been perpetrated only by the husband without knowledge, connivance and participation of parents of the husband. (v)The witnesses being closely related to the deceased and living nearby cannot be held to be chance witnesses when the deceased had telephoned Vipin Bedi PW3. She could have confided in her cousin in the circumstances, particularly when her parents were at a different station and PW3 Vipin Bedi was her closest relative living nearby. In family matters, once a plan to eliminate a daughter-in-law is unearthed, it may not be easy to find out precise reasons in the mind of the accused for doing so. No one Crl.A.No.127 DB of 2006 12 from outside may be aware about such reasons. Sometimes, they may be dowry related and sometimes it may be otherwise. However, inadequacy or absence of proof of motive does not have any bearing on the case of the prosecution, if otherwise established. In case of present nature, a cautious approach is called for to balance the societal need that perpetrators of a heinous crime in the four walls of a domestic house do not escape and at the same time, version of relative witnesses is not accepted on the face value but only to the extent the same is corroborated by independent circumstances so that a possibly innocent person is not falsely implicated. We are, thus, not accepting the version of PW3 Vipin Bedi and PW4 Rohit Malhotra on its face value but only to the extent the same is corroborated by independent circumstances, particularly, circumstances enumerated above. As already observed, the death was homicidal and the offence of such grave magnitude could not have been perpetrated only by the husband whose involvement was almost certain. His parents would have been fully taken into confidence and consented to the commission of offence. Giving margin for exaggeration by PW3 Vipin Bedi and PW4 Rohit Malhotra about description or manner of offence and role assigned individually to the accused, we are fully satisfied Crl.A.No.127 DB of 2006 13 about the husband of the deceased and parents-in-law of the deceased being involved in causing death by burning. The Court has to separate grain from the chaff having regard to realities of situation. It has been judicially noticed that one hardly comes across a witness whose evidence does not contain a grain of untruth or exaggeration or embellishment. (Gangadhar Behera v. State of Orissa, AIR 2002 SC 3633). The Court can draw inference from proved facts and presume existence of such facts having regard to common course of natural events, human conduct and probabilities (Limbaji v. State of Maharashtra, AIR 2002 SC 4910). Thus, conviction of Rajiv Kumar, Dharam Chand and Sudesh Kumari is fully justified. By way of abundant caution, we give benefit of doubt to Deepak Kumar and Rajesh Sehgal. Accordingly, while upholding conviction of Rajiv Kumar, husband of the deceased, Dharam Chand, father-in-law of the deceased and Sudesh Kumari, mother-in-law and dismissing their appeal, we give benefit of doubt to Deepak Kumar and Rajesh Sehgal, allow their appeal and acquit them. The appeal is disposed of accordingly. (Adarsh Kumar Goel) Judge ( S.D. Anand ) Judge January 28, 2008 arya/gs Crl.A.No.127 DB of 2006 14