IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 684-SB of 1996 Date of decision: 3rd March, 2009 Amar Iqbal Singh … Appellant Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA 1. Whether reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? ***** Present: Mr. Baljinder Singh, Advocate for the appellant. Mr. Mehardeep Singh, Assistant Advocate General Punjab for the State. Mr. Jatinder Singh Lalli, Advocate for the complainant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present appeal has been preferred by Amar Iqbal Singh. He has been convicted and sentenced by the Court of Additional Sessions Judge, Ludhiana under Section 304-B IPC to undergo 7 years rigorous imprisonment and a fine of Rs.1,000/-. In default of payment of fine to further undergo rigorous imprisonment for two months. Amar Iqbal Singh was tried in case FIR No.11 dated 24.1.1993 registered at Police Station Division No.4, Ludhiana under Sections 302/304-B/306/511 and 120-B IPC along his father Harbhajan Criminal Appeal No.684-SB of 1996 Singh, mother Surjit Kaur, brother Kamaljit Singh and sister Sukhdeep Kaur. Amar Iqbal Singh was married with Surinder Kaur on 9.2.1992. It is stated that on 13.1.1993, she made an attempt to commit suicide by hanging. Whether it was hanging or strangulation? - will be seen and examined in later part of the judgment. Suffice it to say, according to counsel for the appellant, she was firstly taken to Daya Nand Medical College, Ludhiana where she could not be attended because of strike in the hospital and thereafter she was taken to Christian Medical College, Ludhiana where she died on 25.1.1993. Petitioner to present appeal has built his entire edifice on Daily Diary Entry No.13 recorded on 17.1.1993 at Police Station Division No.4, Ludhiana. Para 2 of the judgment reveal that Swaran Singh made a statement on 17.1.1993 before ASI Mohan Lal that he has got two sons and three daughters. On 13.1.1993 he received a telephonic message that his daughter is admitted in C.M.C. Ludhiana. Therefore, he reached there and found his daughter lying unconscious. It was stated that she is unconscious and as and when she becomes conscious, then on knowing the true facts, he will make a statement to the police. Mr.Baljinder Singh, counsel appearing for the appellant, Mr.Mehardeep Singh, Assistant Advocate General, Punjab and Mr.Jatinder Singh Lalli appearing for the complainant have stated that probably this Daily Diary Report has not been exhibited. On 24.1.1993, complainant Swaran Singh gave a typed application dated 23.1.1993 to ASI Mohan Lal PW-10. This application has been exhibited as Ex.PD and is having endorsement of ASI Mohan Lal as Ex.PD/1. In the application, it has been stated that Surinder Kaur daughter of complainant was married with Amar Iqbal Singh on 9.2.1992. At the 2 Criminal Appeal No.684-SB of 1996 time of marriage, he had given dowry according to his capacity and at that time accused Amar Iqbal Singh and his family members demanded Rs.One lac in cash. This fact was disclosed by Surinder Kaur to his father who requested them that once he is able to clear his debts, then he will give them a car and cash. On the Lohri festival, complainant had gone to the matrimonial house of his daughter and requested the accused that she be sent along with him to her parental house which was refused by the accused saying that she will be sent only once. On 13.1.1993 on next day of Lohri day at 11.00 A.M., complainant rang his daughter Surinder Kaur who told them to come. Then in the evening they received a phone call not to come as Surinder Kaur is preparing to go. On the same day at 6.45 P.M. a telephone was received that Surinder Kaur is unconscious. Complainant reached there at 7.05 P.M. and was told that Surinder Kaur in an unconscious condition had been taken to a hospital, Daya Nand Hospital, which refused to admit her and told to take her to Christian Medical College Hospital. Surinder Kaur in an unconscious condition was taken to Christian Medical College Hospital where Surinder Kaur was lying on the death bed and was unconscious. The accused were pressurising them not to take any action. It was stated that accused obtained signatures of complainant on blank papers, about which he did not know. Therefore, it was requested that investigation be done and justice be done to the complainant. After endorsement on the application Ex.PD/1 was made, formal FIR Ex.PD/2 was registered on 24.1.1993. Investigation was conducted. Except Amar Iqbal Singh, all other co-accused were placed in column No.2. Report under Section 173 Cr.P.C. was submitted for the offence under Section 304-B IPC. Later a supplementary challan against Amar Iqbal Singh, Harbhajan Singh, Surjit Kaur, Kamaljit Singh and Sukhdeep Kaur was presented under Sections 3 Criminal Appeal No.684-SB of 1996 302, 304-B and 120-B IPC and these accused were charged for offences under Sections 302, 149, 147 IPC and in the alternative for offence under Section 304-B IPC. Prosecution examined PW-1 Dr.Manmohan Singh, Medical Officer. He had conducted autopsy on the dead body of Surinder Kaur on 25.1.1993 at 4.15 P.M. along with Dr.U.S.Sooch and Dr.R.N.Singla. They had made the following observations:- “.....It was dead body of well built, well nourished, young female with eyes closed, mouth was closed. Cyanosis of lips, tongue and nail was present. Post mortem staining was present in the back. Rigor mortis was also present all over the body. She was wearing kamiz and salwar and cut down wound was present on right upper arm Ligature mark 4½” x 1/2” placed horizontally on the front of neck at the level of thyroid cartilage. Margins of ligature mark have minute scab formation blackish in colour and some scabs have been pealed off with pinkish raw area underneath. On dissection of ligature mark underneath sub cutaneous tissue showed ecchymosis and underneath muscles contused. Tracheotomy wound was present. I found the following injuries:- 1. Pale coloured contusion in an rea of 1½” x 1½” just below the lateral end of right clavicle. 2. Two pale coloured contusions ¾” x ¾” and 1” apart each other below and medial to injury no.1. On cut section ecchymosis of underneath muscle was present. Larynx and trachea were congested. Right and left lung were congested. Heart was congested and its right side contained blood. Abdomental walls and peritoneum were healthy. Mouth, pharynx and esophagus were healthy. Stomach was healthy and it contained 100 CC of coffee coloured fluid. Small intestines and large intestines were contained gasses and congested. Liver, spleen, kidneys were congested. 4 Criminal Appeal No.684-SB of 1996 Bladder was empty and healthy. Organs of generation were healthy and empty.” According to opinion of the Medical Board, cause of death is anoxia caused by incomplete strangulation which was sufficient to cause death in ordinary course of nature and was ante mortem in nature. During cross-examination Doctor admitted that usually in case of strangulation, there is fracture of a hyoid bone. He further stated in cross -examination that in present case death due to partial hanging cannot be ruled out. In re-examination, the Doctor stated that it is a case of partial strangulation or a partial hanging but there is no greater probability of either. Swaran Singh complainant appeared as PW-2. He reiterated what was stated by him in the FIR. The accused could not gain any advantage in the cross-examination. Mother of the deceased Parkash Kaur appeared as PW-3 and she corroborated the testimony of Swaran Singh. Parkash Kaur had further stated that on day of Lohri when death of the deceased took place, Rs.30,000/- was given. This according to counsel is important. PW-4 Bhim Sen Aggarwal, Assistant Regional Manager, UCO Bank, Jalandhar appeared as PW-4. He proved certificate Ex.PE. Ex.PE is a certificate to show that on 4.1.1993 Swaran Singh had withdrawn Rs.35,000/-. PW-5 Subhash Kharbanda was examined to prove demand of dowry but he resiled from his testimony and was declared hostile. Rajinder Kaur appeared as PW-6. She is sister of mother of deceased Surinder Kaur. She has stated that on 13.1.1993 at 5.30 P.M. Jatinder Kaur elder sister of deceased Surinder Kaur came to her and told her that she has to go to meet Surinder Kaur. Therefore, they reached at the house of the accused. The door of the house was closed from inside. They knocked the door and they found that door of room of Surinder Kaur was also closed. After about five minutes when the door was opened, they 5 Criminal Appeal No.684-SB of 1996 found that Surinder Kaur was lying unconscious on the cot and the accused were present in the room. They attempted to massage the shoulder of Surinder Kaur but she did not respond. Accused Kamaljit Singh had informed that he had given a telephone call to the parents of Surinder Kaur upon which she came back to her house. She was duly confronted with her statement Ex.P6/A. To similar effect is the statement of Jatinder Kaur who appeared as PW-7. She was also confronted with her earlier statement Ex.P7/A. Dr. Allen Joseph, Registrar, Department of Surgery, CMC & Hospital, Ludhiana appeared as PW-8. He stated that Surinder Kaur was admitted in the hospital on 13.1.1993 at 8.50 P.M. He proved injury report Ex.PW8/1. He stated that there was a mark of 10 cm in upper part of neck anteriorly . He further said that in this case, cause of injury was either due to hanging or strangulation. Dr.William Bhatti appeared as PW-9. He proved that Surinder Kaur was admitted on 13.1.1993 and she expired on 25.1.1993 at 6.00 A.M.. ASI Mohan Lal who received the written complaint, made endorsement thereon and appeared as PW-10. He proved various facets of investigation. In cross-examination he had admitted that before 23.1.1993 no version was given to him by any relation of the deceased. He further stated that during his investigation, no evidence came to his knowledge regarding commission of offence under Section 302 IPC. Dr.Jasbir Singh appeared as PW-11. He stated that he is private medical practitioner. On 13.1.1993 he was present at his clinic. A child came to his clinic and he asked him to accompany at the house of Amar Iqbal Singh. On reaching there he found the wife of accused Amar Iqbal Singh to be unconscious and recommended to take her to some hospital. Jaspal Singh appeared as PW-12 to prove extra judicial confession but in the midst of his testimony he was declared hostile and was cross-examined and confronted with his previous statement. 6 Criminal Appeal No.684-SB of 1996 Thereafter, statements of accused under Section 313 Cr.P.C. were recorded. Amar Iqbal Singh stated as under:- “I am innocent. I was married to Surinder Kaur on 9.2.1992. We were living happily. Dowry if any was given by the parents of Surinder Kaur of their own sweet will. We never demanded any dowry or any money. I was running a hosiery business in the name of Jugnu Enterprises India since 12.4.1990. My firm was paying Income tax. I had life Ins. Policy of Rs.One lack dated 20.10.1992 and my wife Surinder Kaur now deceased was nominee in that policy. My father Harbhajan Singh was working as Manager in Punjab & Sind Bank Mandi Ahmedgarh during those days i.e. 13.1.1993. He was there since June 1992 and prior to that he was posted as Manager Punjab & Sind Bank U.P. In Gorakhpur. On 13.1.1993, Surinder Kaur alone was present alongwith my grandmother Sheelawati. I alongwith Surinder Kaur used to sleep in the Chaubara. On 13.1.1993, Surinder Kaur continued playing kites during the day and raising raula and crossing kites with other boys. My grandmother who is an old lady felt annoyed due to her behaviour. She said some harsh words to Surinder Kaur. Surinder Kaur was an educated lady who felt annoyed and went in her bed room and tried to commit suicide by putting chuni in hook of the fan and other side of the chuni in her neck. I came and I saved her and raised raulla and also called Dr.Jasbir Singh who advised me to take Surinder Kaur to DMC. I took Surinder Kaur to D.M.C. But staff of DMC was on strike, so I took her to C.M.C. Before that I had informed my father-in-law on telephone about the abovesaid occurrence. I tried to save Surinder Kaur by giving her best medical treatment from C.M.C. But unfortunately, she could not survive and due to partial hanging, she even could not speak during the days, she remained alive. I and my family members remained in C.M.C. And continued giving her medical aid but Swaran Singh on misguided suspicion and under wrong advice of his relations falsely involved me and my relations. We were apprehended from the C.M.C. by the police. I and my 7 Criminal Appeal No.684-SB of 1996 relations were kept in P.S. Division No.4 Ludhiana on 24.1.1993 and I was shown arrested on 13.2.1993 and my relations were let off by the police of P.S. Division No.4, Ludhiana.” In defence the accused examined DW-1 Gurbinder Singh who proved various receipts and bills showing that expenses on the treatment of Surinder Kaur were borne by the appellants. Harbans Singh DW-2 proved Life Insurance Policy of appellant to show that deceased was a nominee of the insurance. This, according to counsel, reveal love and affection of the appellant for his wife. DW-3 Sudhir Mahajan proved the record relating to Jugnu Enterprise wherein the appellant was a partner along with his father in the firm. It was proved that firm was paying the income tax. This, counsel submits, is sufficient to infer that appellant was possessed of sufficient means and there was no craving on his part for dowry. DW-4 Bhag Singh Sidhu was examined to show that co-accused of appellant Harbhajan Singh was posted as Bank Officer at Mandi Ahmedgarh and he used to remain in the Bank premises. A kind of alibi was pleaded. DW-5 Manohar Lal had appeared to prove handwriting Ex.D7 made at the instance of Harbhajan Singh father of the deceased on 1.5.1993. DW-6 HC Joginder Ram was examined to prove Ex.PW7/DA and Ex.PW2/DA. DW-7 Balan was produced to prove various expenses incurred at the CMC Hospital. Thereafter, the accused closed their defence evidence. In the present case, accused appellant was also tried for offence under Section 302 IPC. Trial Court relied upon the statement of PW-1 Dr.Manmohan Singh, Medical Officer, who admitted in cross- examination that usually there is a fracture of hyoid bone and in the present case, there was no fracture of hyoid bone. Therefore, possibility of partial hanging cannot be ruled out. The Court further held that Jatinder 8 Criminal Appeal No.684-SB of 1996 Kaur PW-7 had made material improvements over the statement made to the police, and therefore, held that she was not a reliable witness. Trial Court further held that testimony of Rajinder Kaur PW-6, real sister of mother of the deceased, is also not to be taken into consideration, as she has also made material improvements in the statement and no credence can be attached to her testimony. Therefore, it was held that these two witnesses have not witnessed the occurrence. Testimony of Jaspal Singh PW-12, to whom extrajudicial confession was made, was also not believed. Trial Court, therefore, acquitted the accused for offence under Section 302 IPC. Counsel for the appellant has made two-fold submission. Firstly, it has been contended that in the present case, deceased has committed suicide and cause of death is hanging. Secondly, it has been submitted that there is no evidence with the prosecution that soon before the death, dowry was demanded. Therefore, presumption under Section 113(b) of Indian Evidence Act is not attracted. By advancing both these arguments, counsel has attempted to canvass before this Court that the deceased has committed suicide and the offence, if any, will fall under Section 306 IPC. Therefore, it has been urged that the appellant be acquitted under Section 304-B IPC and be sentenced under Section 306 IPC. Since no minimum sentence/punishment is prescribed under Section 306 IPC, therefore, the sentence awarded upon the appellant be reduced to already undergone. It is stated that the appellant was taken into custody on 11th February, 1993. He remained in custody during the entire period of trial and the sentence awarded upon him was suspended on December 3, 1996. Thus he has undergone 3 years and 10 months of his actual sentence. Therefore, in order to appreciate the second contention raised 9 Criminal Appeal No.684-SB of 1996 by the counsel for the appellant, it becomes necessary to determine whether the deceased died due to hanging or strangulation. Asphyxial deaths have been considered by HWV Cox in his book ‘Medical Jurisprudence and Toxicology’ Seventh Edition, published by LexisNexis Butterworths (hereinafter referred to as ‘Cox’). In Section 3, Chapter 2, Cox has given various kinds of Asphyxial deaths caused by suffocation, hanging and strangulation. Strangulation, by Cox has been partly divided into manual strangulation called ‘throttling’ and strangulation by ligature (sometimes called ‘garroting’). Taking into consideration pathological findings, certain differences have been noted. Since in the present case, a ligature mark is present, this Court need not consider manual strangulation. In his lucid study, the author has observed that spiral rope patterns, woven cords, plaited electric wires, links of chains and other typical patterns may be imprinted upon the skin surface. The author has further observed that the width of skin groove from a ligature may not be the same as the object which caused it, for example, where a folded cloth has been used, there may be great differences between the appearance of the neck mark and the size of the ligature. If a piece of fabric is pulled tight, bands of tightly stretched material will appear and where these are applied forcibly to the skin, only the stretched bands may cause grooving of the skin. Thus, nature of the ligature mark and the object, i.e. cloth, wire and cord used can be one of the indicators to determine ligature strangulation. It has further been observed by Cox on page No.350 as under: “After death, the ligature mark on the skin may assume a dry, leathery, parchment-like appearance which is due to damage to the epidermis, though it is said that it is not due to friction. There may also be exudation of tissue fluid 10 Criminal Appeal No.684-SB of 1996 which later dries, forming a stiff film. Frequently, there are petechial hemorrhages on either side of the ligature mark and this is absolute confirmation that the mark was made during life. Reddening and congestion is also common immediately adjacent to the ligature mark, though the floor of the ligature mark itself may be pale due to squeezing out of the blood by the pressure, As mentioned earlier, it is very common for the skin to be congested above the ligature mark and normal or pale below, this again being absolute proof that the ligature was applied during life. The absence of such congestion, however does not indicate that the ligature was applied after death, as in the frequent rapid types of death following compression of the neck, there may be insufficient time for any changes to occur in the skin. Apart from the mark due to the ligature and any possible ‘asphyxial’' changes above, such as congestion, oedema, cyanosis, petechiae and nose bleeding, certain other marks may be discovered on the skin in cases of ligature strangulation. The most frequent ones are those inflicted by the victim in an attempt to tear away the ligature and are usually seen as scratches on the skin of the neck near the position of the ligature.” Cox further stated that in strangulation by ligature, level of ligature is often such that it is well below hyoid bone and fractures are thus, less frequent than in the manual strangulation, where the grip is usually higher. The author further stated that hanging has certain features in common with strangulation by ligature, but there are marked differences in the mechanism of death. One of the marked difference is that the position of ligature mark in hanging is usually different from that in strangulation, the hanging mark being higher on the neck than when an assailant places a ligature around the victim. The hanging mark normally passes above the 11 Criminal Appeal No.684-SB of 1996 larynx, at the level of the base of the tongue, passing then beneath the angles of jaw, rising to a high point, where the noose is joined to the fixed part of the rope or wire. It was further held that mechanism of death is very frequently sudden due to cardiac arrest from pressure upon the large vessels in the neck. The author has culled differences between hanging and strangulation by drawing the following table on page 361: Difference between Hanging and Strangulation Trait Hanging Ligature Strangulation 1. Face Pale and petechiae are not common It is livid, congested and full of petechiae 2. Ligature mark Oblique usually seen high up in the neck above the thyroid cartilage and incomplete Transverse, completely encircles the neck and usually below the thyroid cartilage 3. Base Pale, hard and parchment like Soft and reddish 4. Subcutaneou s Tissue It is white, hard and glistening below the mark Ecchymoses present below the mark 5. Neck Stretched and elongated Not so 6. Hyoid Bone Fracture is common Fracture is rare 7. Thyroid Cartilage Fracture is rare Fracture is common 8. Tongue Swelling and protrusion Are well marked 9. Saliva Usually runs out of mouth Absent 1 0. Bleeding From the nose, mouth and the ears are not so common From the nose, mouth and ears are common 1 1. Involuntary Discharge Of the faeces and urine are not common Are commonly seen 1 2. Seminal Fluid Usually seen at the glans penis Rarely seen Modi’s Medical Jurisprudence and Toxicology, Twenty-third Edition contained Chapter 18 of Section I: Medical Jurisprudence regarding Asphyxia. Hanging has been defined by Modi as the ligature compression of the neck by the weight of one’s own body. Cause of death 12 Criminal Appeal No.684-SB of 1996 is one of the indicators to determine whether deceased died due to hanging or strangulation. Modi has observed as under on page No.576: “Causes of Death Death is usually due to asphyxia (anoxic hypoxia), but it may be due to other causes, namely, cerebral ischaemia or venous congestion, asphyxia and venous congestion combined, or shock due to reflex cardiac arrest (it accounts for at least half the deaths from manual strangulation). Very rarely, the cervical vertebrae may be fractured. Probably, one or more causes may operate during strangulation. A pale face would indicate a rapid death from reflex cardiac arrest, while face with petechiae would suggest a delayed death.” Another indicator is appearance due to Asphyxia. It has been noticed by Modi as under on page No.579: “(b) Appearances due to Asphyxia: The face puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.” After noticing all these parameters, Modi has drawn the following table on page No.583-4: “Differences between Hanging and Strangulation 13 Criminal Appeal No.684-SB