IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 749-DB of 2006 DATE OF DECISION : 09.03.2010 Narender .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. J.S. Bedi, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Narender along with his younger brother Virender was tried by Additional Sessions Judge, Rohtak, in case FIR No. 172 dated 1.8.2005, registered at Police Station Sadar Rohtak, for committing the offences under Sections 498-A and 304-B IPC, and in the alternative under Section 302 IPC, for causing the death of Jagwanti wife of appellant Narender. The trial court, vide its judgment dated 12.9.2006, acquitted accused Virender of the charges, framed against him, whereas appellant Narender was found guilty of committing the murder of his wife Jagwanti and was convicted under Section 302 IPC. However, he was acquitted of the charges under Sections 498-A and 304-B IPC. Vide order dated 13.9.2006, Crl. A. No. 749-DB of 2006 -2- appellant Narender was sentenced to undergo rigorous imprisonment for life and fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for one year, under Section 302 IPC. 2. The prosecution case, in brief, is that on 8.5.2000, Smt. Jagwanti, younger daughter of Ram Singh, was married to appellant Narender, a resident of village Sanghi, District Rohtak. On 31.7.2005 at about 9 PM, Ram Singh (father of Jagwanti) received a telephonic message from village Sanghi that his daughter was killed by Narender and Virender in their house. On receiving the said message, he along with his family members and respectable persons reached village Sanghi. When he went to the house of the accused, he did not find any body present there. On enquiry from neighbourers, he came to know that the police had taken the dead body of Jagwanti to the Hospital. Then, on the next day i.e. on 1.8.2005 at 10.40 AM, Ram Singh went to Police Post Ghilaur and submitted an application (Ex.P12) to the police, on the basis of which formal FIR (Ex.P17) was registered in Police Station Sadar, Rohtak, on the same day at 11.30 AM. 3. In his application (Ex.P12), Ram Singh stated that his younger daughter was married to appellant Narender on 8.5.2000 and after the marriage, his daughter came to him and told that her in-laws used to say that her parents had given nothing to them. She further stated that Narender and Virender had asked her to bring Rs. 20,000/-, otherwise she will be killed. After that incident, he tried his best to make them understand, but they did not stop harassing his daughter. They used to give beatings to his daughter Crl. A. No. 749-DB of 2006 -3- time and again. On 31.7.2005, on receiving the telephonic message from village Sanghi that his daughter was killed by Narender and Virender, he went to village Sanghi. When he did not find his daughter in the house of his son-in-law, then he made the complaint to Police Post Ghilaur and reported the matter. 4. In the present case, the occurrence has taken place on 31.7.2005 in the house of the accused. It appears that in the evening of 31.7.2005, the dead body was taken to PGIMS, Rohtak, but the inquest report (Ex.P19) was prepared on 1.8.2005 after registration of the FIR. In the inquest report and the site plan (Ex.P18), it has been shown that the deceased died because of hanging and the dead body was lying in a room of the first floor of the house of appellant Narender. ASI Raj Singh, while appearing in the Court as PW.17, stated that after registration of the case, he accompanied the complainant to the place of occurrence and prepared the rough site plan Ex.P18 and thereafter, he went to PGIMS Rohtak, where dead body was lying, and prepared the inquest report. Thereafter, he handed over the dead body to HC Shamsher Singh (PW.9) for getting its post mortem conducted from the Doctor of General Hospital. 5. On 1.8.2005 at about 1.30 PM, Dr. J.K. Bhalla, Medical Officer (PW.4) along with Dr. S.P.S. Bhatia, Medical Officer, General Hospital, Rohtak, conducted the post mortem examination of the dead body of Jagwanti aged about 23 years. He stated that according to the post mortem papers received from the police, the information regarding death was Crl. A. No. 749-DB of 2006 -4- received by the police on 31.7.2005 at 10.00 PM. As per the information, given by the police, the death of Jagwanti took place due to hanging. During the post mortem examination, Doctors did not find any ligature mark on the body of the deceased. However, red coloured contusion was present on the left side of the face of the size of about 3 cm x 2 cm. The face on left side, neck and upper part of the chest were congested. Minimal bleeding from nostrils was present. Lips and fingers of both the hands were cyanosed. On dissection contusion, haematoma was present in the sub cutaneous tissue. Larynx and trachea were congested. Hyoid bone was intact. Lungs were congested. Liver, spleen and kidneys were congested. Stomach, small intestines and large intestines were sent for chemical examination. At the time of the post mortem examination, the opinion with regard to the cause of death was deferred to await the report of the Chemical Examiner. After receipt of the report, it was opined that the cause of death was due to asphyxia because of smothering. 6. During investigation, on 24.10.2005, both the accused were arrested. Statements of the witnesses were recorded. After completion of investigation, the challan was filed against the accused and charges under Section 498-A, 304-B IPC and in the alternative under Section 302 IPC were framed, to which they did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined as many as 17 witnesses. 8. PW.1 Ajit Singh, who is the Ex-Sarpanch of village Sanghi, Crl. A. No. 749-DB of 2006 -5- was examined to prove that the dowry articles given in the marriage were taken into possession by the police vide memo Ex.P1. PW.2 Dharambir was examined on to prove that the marriage of Jagwanti with appellant Narender was solemnized about five years ago. PW.3 Jai Bhagwan is the Pandit, who got performed the said marriage. PW.4 Dr. J.K. Bhalla, who conducted the post mortem examination of the dead body, has proved the Post Mortem Report Ex.P4. PW.5 Baljeet Singh HC, PW.6 Ram Niwas HC and PW.7 Jaidev Singh, MMHC are the formal witnesses, who have tendered their affidavits Ex.P7, Ex.P8 and Ex.P9, respectively, with regard to the handling of the case property and delivering the special reports to the Illaqa Magistrate, SP Rohtak and DSP (D) Rohtak. PW.8 Sumit Kumar Constable, who had prepared the site plan of the spot on the asking of the police and on the demarcation of Ram Singh complainant, has proved the site plan Ex.P10. PW.9 Shamsher Singh HC had got conducted the post mortem of the dead body of the deceased. PW.10 Ram Singh complainant, PW.11 Smt. Kitabo wife of Ram Singh complainant, PW.12 Ajay Kumar son of Ram Singh complainant, PW.13 Sukhbir (cousin brother of the deceased) and PW.14 Ram Chander (brother of complainant Ram Singh) turned hostile and did not support the case of the prosecution. These witnesses stated that deceased Jagwanti never made any complaint to them about her harassment by the accused. They never made any statement before the police. PW.10 complainant Ram Singh (father of the deceased) even has denied to have given application (Ex.P12) to the police for registration of the case. PW.15 Crl. A. No. 749-DB of 2006 -6- SI Megh Ram has proved the formal registration of the FIR Ex.P17 on the basis of the complaint made by the complainant. PW.16 Inspector Rohtas Singh deposed about the submission of final report under Section 173 Cr.P.C. PW.17 ASI Raj Singh is the Investigating Officer of the case, who stated that on 24.10.2005, he arrested both the accused and on 25.10.2005, he recovered the dowry articles from the house of the accused vide memo Ex.P1. This witness categorically stated that after registering the case on the application (Ex.P12) made by the complainant, he went to the place of occurrence and prepared the rough site plan Ex.P18. Thereafter, he went to PGIMS Rohtak, where the dead body was lying and he prepared the inquest report there. Thereafter, the dead body was handed over to HC Shamsher Singh to get its post mortem examination. 9. In the statements of the accused under Section 313 Cr.P.C., they were confronted with the incriminating circumstances appearing against them. Both the accused denied all the allegations of the prosecution. On a specific question put to appellant Narender, he replied that deceased Jagwanti was in his house on 31.7.2005, when she died. He further stated that it is wrong that she died because of asphyxia, but she died because of hanging. In their defence, the accused examined Dharambir son of Puran Singh as DW.1, who was running a Chemist shop in front of the house of the accused. He stated that on 31.7.2005 at about 7.00 PM, he was sitting outside his shop. Some children raised alarm from the roof of appellant Narender that Jagwanti had become unconscious. Then he, one neighbourer Crl. A. No. 749-DB of 2006 -7- and others rushed towards the house, where they noticed that Jagwanti was lying on the cot and she had covered her face with a plastic bag, which she had worn like a cap. That plastic bag was sticked with the nose and the mouth. She had also tied cloth i.e. Chunni (Dupatta) over her mouth. He realised and presumed that it was on account of playing game of hide and seek with the children and in an attempt to use the plastic bag, she has died. This witness further stated that he removed the cloth as well as plastic bag, but she was not breathing. Number of persons were present at that time. He took telephone number of Dhani Phaugat, from where she belonged. He intimated her parents about the incident. This witness has stated that Jagwanti was taken to the Hospital by the police and her parents. In the cross-examination, he admitted that some blood was visible outside the nostril. However, there was no blood on the clothes of Jagwanti. He further stated that he had placed the plastic bag as well as Dupatta near the head of the dead body. 10. After considering the evidence led by the prosecution as well as the defence, the trial court came to the conclusion that since the parents, brother as well as the other prosecution witnesses have resiled from their earlier statements of harassment on account of demand of dowry, therefore, the charges under Sections 498-A and 304-B IPC are not established. Accordingly, both the accused were acquitted of the said charges. However, after taking into consideration the fact that the deceased had died due to smothering, when she was in the house of her husband Narender, as well as Crl. A. No. 749-DB of 2006 -8- the fact that appellant Narender has failed to explain as to how smothering had taken place, and the fact that when he could not establish the plea that the deceased has died due to hanging, then he attempted to produce false witness Dharambir as DW.1, the trial court convicted appellant Narender under Section 302 IPC for committing the murder of his wife and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-. However, co-accused Virender was acquitted of the charge under Section 302 IPC. Against his conviction, appellant Narender has filed the instant appeal. No appeal has been filed by the State against the acquittal of co- accused Virender. 11. Shri J.S. Bedi, Advocate, learned counsel for the appellant, vehemently argued that in the instant case, no body has seen the appellant causing death of his wife by smothering. The prosecution has also failed to prove that at the time of the alleged occurrence, the appellant was present in the house. Merely because the appellant in his statement under Section 313 Cr.P.C., had not taken the plea that he was not present in the house at the time of the occurrence, it cannot be presumed that he was present in the house at that time. Learned counsel argued that the appellant cannot be convicted for the offence under Section 302 IPC on the ground that in his statement under Section 313 Cr.P.C., he has failed to render probable explanation regarding the death of his wife. According to the learned counsel, there is no circumstantial evidence on the record, which connects the appellant with the commission of the crime. The appellant has been Crl. A. No. 749-DB of 2006 -9- convicted merely on suspicion, because in his statement under Section 313 Cr.P.C., he has admitted that the deceased has died in his house. According to the learned counsel, in the instant case, none of the prosecution witnesses has supported the prosecution version with regard to the harassment of the deceased by the accused in connection with demand of dowry. By accepting that position, even the trial court has acquitted the appellant of the offence under Sections 498-A and 304-B IPC. In spite of the said fact, the trial court has convicted the appellant for the offence under Section 302 IPC, while relying upon the medical evidence to the effect that the cause of death was smothering and not hanging, and the fact that at the time of the occurrence, the appellant was present in the house, therefore, it was for him to explain the circumstances and the manner, under which she had died, which according to the trial court the appellant could not explain. Learned counsel submitted that merely because the un-natural death of the wife had taken place in her matrimonial house, the husband cannot be convicted for causing her death, only on the basis of the fact that the husband was present at the time of the alleged occurrence and he could not establish the plea taking by him in his statement under Section 313 Cr.P.C. According to the learned counsel, the statement under Section 313 Cr.P.C. is not substantive piece of evidence. It can only be used for corroboration of the prosecution case. Merely on the basis of the statement under Section 313 Cr.P.C., an accused cannot be convicted. The prosecution has to affirmatively prove the offence. While relying upon the judgments of the Hon'ble Supreme Court in Crl. A. No. 749-DB of 2006 -10- Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P., 2004 (4) RCR (Criminal) 106, Manjunath Chennabasapa Madalli v. State of Karnataka, 2007 (2) RCR (Criminal) 84, Vanga Sriniwas v. Public Prosecutor, High Court of A.P., 2007 (4) RCR (Criminal) 216, Sohel Mehaboob Shaikh v. State of Maharashtra, 2009 (2) RCR (Criminal) 788 and a Division Bench decision of this Court in Sucha Singh v. State of Punjab, 2003 (3) RCR (Criminal) 88, learned counsel for the appellant argued that in these facts and circumstances, conviction of the appellant under Section 302 IPC is not sustainable. 12. On the other hand, Shri S.S. Randhawa, Additional Advocate General, Haryana, learned counsel for the respondent-State, argued that in the facts and circumstances of the case and keeping in view the medical evidence led by the prosecution, coupled with the fact that the appellant was present in his house at the time of the occurrence, but he could not explain as to under what circumstances and in which manner, his wife has died, the trial court, while invoking Section 106 of the Indian Evidence Act, 1872, has rightly convicted the appellant. It was held that the appellant could not explain as to how his wife died due to smothering. He had not only taken the false plea that his wife died due to hanging, but had also led false evidence to show that the deceased died due to smothering, while playing hide and seek with the children in the evening by covering her face with a plastic bag, which she had worn like a cap. Learned counsel argued that in the present case, even the parents, brother and uncle of the deceased had Crl. A. No. 749-DB of 2006 -11- turned hostile. They did not support the prosecution case with regard to the harassment of the deceased by the accused on account of non-fulfilling of their demand of dowry. The father of the deceased, who was the complainant, has gone to the extent that he has denied of having made written complaint (Ex.P12) to the police. It has been held that when the murder of the wife was committed in the house, and except the husband, no body was present in the house, it was for the husband to explain as to under what circumstances and in which manner, the deceased died due to smothering. In view of these facts and circumstances, according to the learned counsel, the trial court has rightly convicted the appellant. 13. Before considering the various arguments, raised by learned counsel for the appellant, it has to be decided that in the present case as to whether the deceased had died due to hanging or by smothering. According to the appellant, it is a case of hanging. In this regard, learned counsel for the appellant, during the course of arguments, put much reliance on certain averments made in the inquest report (Ex.P19) as well as the site plan (Ex.P18), prepared at the spot by ASI Raj Singh (PW.17). In the marginal notes, attached to the site plan (Ex.P18), it was stated that Mark B is the place, where a “Hook” for ceiling fan is fixed, on which deceased Jagwanti was stated to have committed suicide. In column No. 12 of the inquest report (Ex.P19), where information is to be given as to in what manner or by what weapon or instrument the injury or mark of violence appear to have been inflicted, it has been recorded as “Hanging”. In column No. 14, the Crl. A. No. 749-DB of 2006 -12- apparent cause of death has also been recorded as “Died because of hanging”. Learned counsel also referred to column No. 10, where it has been recorded that there is no scratch around her neck. On the basis of these averments in the inquest report and the statements of the prosecution witnesses, wherein they have stated that the deceased died due to hanging, learned counsel argued that in the instant case, the cause of death is hanging. 14. After hearing learned counsel for the parties, we are of the opinion that in view of the clear cut medical evidence available on the record, which has clearly established that in the instant case, the cause of death of the deceased was smothering and not hanging, above said argument of learned counsel for the appellant cannot be accepted. During the post mortem examination, PW.4 Dr. J.K. Bhalla and Dr. S.P.S. Bhatia, Medical Officers, did not find any ligature mark on the body of the deceased. They have specifically found red coloured contusion on the left side of the face of the size of about 3 cm x 2 cm. The face on left side, neck and upper part of the chest were congested. Minimal bleeding from nostrils was present. On dissection contusion, haematoma was present in the sub cutaneous tissue. Larynx and trachea were congested. Hyoid bone was intact. Lungs, Liver, spleen and kidneys were congested. On the basis of these factors, the Doctors have categorically opined that the cause of death was due to asphyxia because of smothering. From the medical evidence, it is clear that it was not a case of hanging, as the symptoms, which were noticed during Crl. A. No. 749-DB of 2006 -13- the post mortem examination, do not confirm the death because of hanging. It was a clear cut case of death caused by smothering. As far as the mentioning of death due to hanging in the inquest report is concerned, it was based upon the hear say information given to the police by the accused or their family members. It has come in evidence that body of the deceased was shifted to PGIMS Rohtak and the information regarding the death of Jagwanti was received by the police on 31.7.2005 at 10.00 PM, but the inquest report and the site plan were prepared subsequently on 1.8.2005. ASI Raj Singh (PW.17), the Investigating Officer of the case, stated that he prepared the rough site plan and the inquest report on the information given by the complainant. Therefore, on the basis of averments made in the inquest report, it cannot be said that the deceased had died due to hanging, when the medical evidence is totally contrary to that and clearly establishes that the deceased had died due to asphyxia because of smothering. Therefore, in our opinion, by the medical evidence, the prosecution has fully established that the instant case is a case of death by smothering. As per the well established principle of medical jurisprudence, one himself/herself cannot cause his/her death by smothering. The act of causing death by smothering is not suicidal. 15. Now the question arises as to who has caused the death of Jagwanti by smothering. In this case, there is no direct evidence to this effect. In a case, where there is no eye witness to an occurrence and the case rests upon the circumstantial evidence, such evidence must satisfy the Crl. A. No. 749-DB of 2006 -14- following tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 16. Now, we have to examine the facts and circumstances of the present case, in the light of the aforesaid tests. In addition to that, there is another principle of law of evidence, which has been incorporated under Section 106 of the Indian Evidence Act, 1872. If an offence takes place inside the privacy of a house where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of his choice, it is extremely difficult for the prosecution to lead the direct evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the court. In a case, if the prosecution succeeds in establishing that the offence was committed in the dwelling house where the husband was residing and was Crl. A. No. 749-DB of 2006 -15- present at the time of the alleged offence, it is for the husband to offer the explanation as to under what circumstances and in what manner, his wife had died. If the husband does not offer any explanation as to the manner in which his wife died or received injuries or if his explanation is found false, then it gives strong circumstance indicating that he has committed the crime. It is the duty of the court to see that no innocent person is punished. It is equally also duty of the court to see that a guilty person does not escape. Both are