IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 365-DB of 2002 Dated of Decision:- February 11, 2009 Nanak Singh and another ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. J.S.Bedi, Advocate for the appellants. Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 23.4.2002/27.4.2002 of the learned Addl. Sessions Judge (I), Panchkula, whereby he convicted Nanak Singh son of Mohan Lal and Sanjay Kumar son of Nanak Singh under Sections 302/34/498-A/120-B IPC and sentenced them to undergo life imprisonment, two years R.I. and life imprisonment respectively. Further they were directed to pay a fine of Rs. 5,000/- each under Section 498-A IPC and in default to undergo R.I. for one year. Sentences were ordered to run concurrently. - 2- Criminal Appeal No. 365-DB of 2002 Dinesh Arora, who was also charged along with the appellants under Sections 302/120-B/ 498-A IPC, was acquitted of all the charges by the learned trial Court. State has not filed any appeal against his acquittal. The case of the prosecution is unfolded by the statement Ex.PD of Tarsem Kumar Verma given to Sham Singh SI at PGI, Chandigarh. Tarsem Kumar Verma has stated that he is a resident of House No. 3472, Sector 37-D, Chandigarh and is running a Tailoring shop in Sector 22-D, Chandigarh, in the name of Diwan Tailor. His younger sister was married to Sanjay son of Nanak Singh Arora, who lived in House No. 30, Sector 22-A, Chandigarh. After some time, Sanjay Arora along with his family and parents shifted to House No. 1430, Sector 4, Panchkula. His sister gave birth to two children, a boy and a girl. Dinesh Arora, her father- in-law and Sanjay, her husband started harassing and beating her to bring more dowry. They threatened her that if she did not bring the money demanded, they would finish her. About 10-12 days before the occurrence, Nanak Singh left Sunanda in the house of Tarsem Kumar, the complainant. Sunanda told her parents and brother, that he (Nanak Singh) had left her so that, she would bring money. Tarsem Kumar had paid money several times, according to his capacity. On 14.6.99 at about 11.45 p.m. (night), Tarsem Kumar received a telephone call at his house in Chandigarh to leave Sunanda in her in-laws’ house. Tarsem Kumar along with his wife Sulakshana went to House No.1430, Sector 4, Panchkula and left Sunanda in her in-laws’ house. On 15.6.99 Tarsem Kumar received a telephone call from Sunanda, that all the three i.e. her mother-in-law, father-in-law and her husband were harassing her and demanding money. On 16.6.99 at about - 3- Criminal Appeal No. 365-DB of 2002 8.30 p.m., Tarsem Kumar received a telephone call from Sunanda, where she pleaded with Tarsem Kumar to save her life, as her in-laws had given her something in her food. Thereafter Tarsem Kumar and Sulakshana reached House No.1430, Sector 4, Panchkula. Sunanda was writhing in pain on the bed. Sunanda stated that her in-laws had given her something by mixing it in food and now she would not survive. Tarsem Kumar put Sunanda into a car and took her to General Hospital, Sector 6, Panchkula, where she was referred to PGI, Chandigarh. Before they reached PGI, Chandigarh, Sunanda died. She was declared dead by the PGI, Chandigarh authorities. On the basis of this statement Ex.PD, FIR Ex.PD/1 was recorded at 9.40 a.m. on 17.6.99. The special report reached the Duty Magistrate, Panchkula on the same day at 11.45 a.m. The prosecution to prove its case brought into the witness box, HC Nasib Singh PW1, C.Rajinder Singh PW2, C.Ashok Kumar PW3, Inspector Surinder Pal Singh PW4, Ram Saran Draftsman PW5, C.Partap Singh PW6, Dr. Prabhat Sood PW7, Tarsem Kumar PW8, Sulakshana PW9 and Shyam Singh PW10. Learned counsel for the appellants has argued, that it was appellants Nanak Singh and Sanjay Kumar as per Card Ex.DE, who had got admitted Sunanda in hospital. Indoor File Ex.PX also shows, that the appellants got her admitted. The time shown at Card Ex.DE is 10.37 p.m. Number of the Card CR 202295 is also given and on the side, it is noted that the persons who brought her were appellants Sanjay and Nanak Singh. It clearly shows that Sunanda deceased committed suicide and took poison - 4- Criminal Appeal No. 365-DB of 2002 due to some sort of depression and the appellants were in fact trying to save her life by taking her to the hospital. Appellants were not at fault. There is no phone call which shows as to whether Sunanda had called Tarsem Kumar PW8 or any other person had rung up Tarsem Kumar PW8, to reach the house of Sunanda’s in-laws. It has come in evidence of Tarsem Kumar PW8 and Sulakshana PW9, that when they reached the house in Sector 4, Panchkula, they saw Sunanda’s mother-in-law, father-in- law and her child standing outside. Appellant Sanjay Kumar was not out there. Dr. Vijender Singh DW1 has stated in his testimony, that if a small quantity of poison is given in food, its smell is so pungent, that it can easily be detected. If the appellants had administered organic phosphorous to Sunanda, there would have been a struggle and there would have been injuries on her body. In the statement of Tarsem Kumar PW8 in Court, there is no demand of dowry. It is Sulakshna PW9, who has stated that money was demanded. Learned counsel has further argued, that even if we take the prosecution case in toto, at the most it is a case of suicide. Suicide Note Mark-B is in the hands of Sunanda, in that note, she has not blamed anyone and she has stated that she is leaving the world and nobody is to be blamed for it. Occurrence had taken placed at 8.30 p.m. on 16.6.99 and FIR Ex.PD/1 came into existence at 9.40 a.m. on 17.6.99 i.e. after a gap of 12 hours. This delay was being utilized for consultations and confabulations to falsely implicate the appellants. With the same set of evidence, the learned trial Court has acquitted Dinesh Arora. - 5- Criminal Appeal No. 365-DB of 2002 Learned counsel for the State has argued, that Card Ex.DE is a manipulation. The words “brought by Nanak Singh and Sanjay” are in different hand-writing and not that of the doctor. Appellant Sanjay could not have reached the PGI, as the prosecution witnesses Tarsem Kumar PW8 and Sulakshna PW9 have stated, that he was not at home. Sunanda’s mother-in-law, father-in-law and her child were present at the house, when they reached there. In his statement under Section 313 Cr.P.C., appellant Sanjay Kumar has stated, that he reached his house at 9.00 p.m. on 16.6.1999, but he does not give any explanation as to before that where he was. It is natural for a person to be in his house in the night at 9.00 p.m. In fact appellant Sanjay Kumar after committing the offence of giving poison to Sunanda, ran away so that the police could not catch him. Suicide Note Mark-B was in the possession of the appellants, but it saw the light of day, when the bail application of the appellants was moved before the Addl. Sessions Judge. If the suicide note had been in existence on 17.6.99, appellants would have handed it over to the Investigating Officer. There is no delay in recording of FIR Ex.PD/1. Firstly, Tarsem Kumar PW8 took Sunanda to the General Hospital, Panchkula. Thereafter Sunanda was referred to the PGI, Chandigarh. It is when he reached PGI, Chandigarh, that the doctors declared Sunanda dead. It has come in evidence of Shyam Singh SI PW10, that it was on the information given to him by the police post at PGI, Chandigarh, that he went the next day and recorded statement Ex.PD of Tarsem Kumar. We have heard the learned counsel for the parties and perused the record with their assistance. - 6- Criminal Appeal No. 365-DB of 2002 Learned counsel for the appellants has laid a lot of stress on Suicide Note Mark-B. He has argued, that the suicide note has been written and signed by deceased Sunanda, wherein she has not put any blame on anyone, but has said that she was committing suicide on her own will. Further he has stated that as per OPD Card Ex.DE, appellants Nanak Singh and Sanjay brought her to PGI, Chandigarh. The time on the card being 10.37 p.m. Number of the card being CR 202295. As per statements of Tarsem Kumar PW8 and Sulakshna PW9, when they received a telephone call from Sunanda, that she be saved, as poison had been administered to her, they went to House No.1430, Sector 4, Panchkula i.e. Sunanda’s in-laws’ house. There they met Sunanda’s mother-in-law, father-in-law and a small child (Sunanda’s child). Appellant Sanjay Kumar, the husband of Sunanda was not present at that time in the house. Tarsem Kumar PW8, along with his wife Sulakshana PW9 took Sunanda to the General Hospital, Sector 6, Panchkula. She was referred to PGI, Chandigarh. Thereafter they took her to PGI, Chandigarh, where she was declared dead. Vide Outdoor Patient Ticket Card, Ex.DE, the doctor has opined, “Please make death file”. On the side of the card, it is written brought by Sanjay and Nanak Singh Arora. It can be easily made out with a naked eye that the words “brought by Sanjay and Nanak Singh” are written by a different hand and not the doctor. The flow of writing is also not smooth. If it had been written in the hand of the doctor, the flow would have been the same as that of the words “Please make death file”. The doctor would have also put his signatures. This card is dated 16.6.99. In document Ex.PX, Admission Card of Sunanda, all details have been filled in and it has been signed by Tarsem Kumar PW8. This document is also dated - 7- Criminal Appeal No. 365-DB of 2002 16.6.99. In fact we can safely conclude from both the documents Ex.DE and Ex.PX, that it is Tarsem Kumar PW8, who took Sunanda firstly to the General Hospital, Sector 6, Panchkula and thereafter he took her to PGI, Chandigarh. If appellants Sanjay Kumar and Nanak Singh had taken Sunanda to the General Hospital, Panchkula, there would have been an entry to this effect on record to show their presence. Suicide Note Mark-B does not inspire confidence. It is written in Hindi. The words are not clear, the signatures also cannot be made out. Nothing has come in evidence or in the statement of appellant Sanjay Kumar under Section 313 Cr.P.C., as to before whom and where was it written. This document saw the light of day, when the bail application of the appellants was moved before the trial Court i.e. after a gap of 20 days of the occurrence. The alleged suicide note was not given to the Investigating Officer, nor was any complaint given to the higher authorities that it is a case of suicide and not a case of murder. It is difficult for us to overlook this aspect that at the time when Tarsem Kumar PW8 and Sulakshana PW9 reached House No.1430, Sector 4, Panchkula, on being asked by Sunanda, Sanjay Kumar was not at home. These witnesses have stated, that Sunanda’s mother-in-law, father-in-law and a small child were present. In his statement under Section 313 Cr.P.C., appellant Sanjay Kumar has stated, that at about 9.00 p.m. on 16.6.99, when he came from the factory, he saw Sunanda vomiting. He took her to General Hospital, Sector 6, Panchkula. Repeating again, there is no evidence to this effect that it is appellant Sanjay Kumar, who took Sunanda to the General Hospital, Sector 6, Panchkula. At 9.00 O’ Clock in the night, it was natural for appellant Sanjay Kumar to be in his house. In fact we can - 8- Criminal Appeal No. 365-DB of 2002 safely conclude, that after administering poison to Sunanda, appellant Sanjay ran away. As already discussed above, Card Ex.DE has been manipulated. Both appellants Nanak Singh and Sanjay Kumar were not present, when Sunanda was taken to PGI, Chandigarh. Demand of money was made, as stated in the testimony of both Tarsem Kumar PW8 and Sulakshana PW9 and when this was not given that Sunanda was harassed and tortured. There is no delay in the lodging of FIR Ex.PD/1. Occurrence had taken place at 8.30 p.m. on 16.6.99 and by 9.40 a.m. on 17.6.99 FIR had been recorded. The special report reached the Duty Magistrate, Panchkula on the same day i.e. 17.6.99 at 11.45 a.m. It was night time and the distance between PGI, Chandigarh and the Duty Magistrate, Panchkula is not less than 20 K.Ms. Delay, if any, was only administrative delay. Learned counsel for appellant Nanak Singh has rightly argued, that on the same set of evidence, the learned trial Court has acquitted Dinesh Arora wife of Nanak Singh and convicted Nanak Singh. We are of the considered opinion, that it was appellant Sanjay Kumar son of Nanak Singh, who committed the murder of Sunanda. Appellant Nanak Singh has been roped in. He in fact seems to be the one, who rang up Tarsem Kumar PW8, after his son Sanjay Kumar administered poison to Sunanda. It is not denied by Tarsem Kumar PW8 and Sulakshana PW9, that Sunanda’s mother-in-law, father-in-law (Nanak Singh) and her child were present, when they reached House No. 1430, Sector 4, Panchkula, where they saw Sunanda writhing in pain. Appellant Nanak Singh is given the benefit of doubt. Appeal qua Nanak Singh is allowed. His conviction and sentence is - 9- Criminal Appeal No. 365-DB of 2002 set aside. He is acquitted of all the charges framed against him. If in custody, he be set free forthwith. Appeal qua appellant Sanjay Kumar is dismissed. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) February 11, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO