Crl. Appeal No. 248-DB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 248-DB of 2000. Date of Decision : 29.07.2009. 1. Jagdish, Head Constable No.57, c/o SSP Rohtak. 2. Rajesh Taneja son of Ramji Dass Taneja, r/o H.No. B-3A/246, Janak Puri, New Delhi. ...... Appellants Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Dinesh Arora, Advocate, for the appellants. Mr. H.S. Sran, Addl. AG Haryana. for the respondent-State. NAWAB SINGH J. The accused-appellants, above named, were tried by Sh. Shiva Sharma, Additional Sessions Judge, Rohtak for the offences punishable under Sections 302, and 201/120-B of Indian Penal Code (for short 'the IPC'). They were convicted and sentenced by judgment of conviction and order of sentence dated May 29th, 2000 and May 30th, 2000 as under:- Offence Sentence Fine In default Accused Jagdish u/S 302/120-B IPC Life imprisonment Rs. 2000/-} 1-1/2 months Crl. Appeal No. 248-DB of 2000. 2 u/S 201 IPC RI for Four months Rs.1000/- } Accused Rajesh Taneja u/S 302/120-B IPC Life imprisonment Rs.2000/- 1 month 2. The substantive sentences were ordered to run concurrently. 3. Sunder Lal Gauri father of Manju Bala (deceased) filed complaint (Exhibit PD) against Jagdish Head Constable-appellant No.1, Amar Singh Head-Constable, Diwan Singh, Station House Officer, Police Station Civil Lines, Rohtak, Rajesh Taneja-husband-appellant No.2, Sita Bai-mother-in-law, Sham Lal Taneja-brother-in-law, Jagmohan Bajaj Patwari-uncle-in-law (Husband's sister's husband) Raj-aunt (Husband's father's sister) and Bodh Ram Bhutani uncle-in-law of Manju Bala respectively in the Court of Area Magistrate, Rohtak. It was averred that Manju Bala was married with Rajesh Taneja on April 29th, 1983. On March 10, 1984, Manju Bala was blessed with a female child named Priyanka. From the very beginning, Rajesh Taneja, his mother Sita Bai, brother Sham Lal Taneja and father Ramji Dass Taneja started harassing deceased Manju Bala in relation to demands for dowry. They used to taunt her that the dowry given was not sufficient. She was turned out by above named accused from her matrimonial house on December 14th, 1983. Since then, till her death, on September 6th, 1987, she remained at her parental home at Rohtak. Rajesh Taneja and his family members did not come to meet Manju Bala at Rohtak even after delivery of the child on March 10th, 1984. Manju Bala filed petition under Section 9 of the Hindu Marriage Act (For short 'the Act') in the Court of District Judge, Rohtak. The petition was accepted by judgment Crl. Appeal No. 248-DB of 2000. 3 and decree dated January 8th, 1986. Manju Bala also filed application under Section 125 of the Code of Criminal Procedure for maintenance in the Court of Chief Judicial Magistrate, Rohtak. Rajesh Taneja also filed a petition under Section 13 of the Act on January 19th, 1987. Both, the application under Section 125 Cr.P.C and petition under Section 13 of the Act could not be decided as Manju Bala expired on September6th, 1987. During the pendency of the petition under Section 13 of the Act, Rajesh Taneja solemnized second marriage. 4. It is further the case of the complainant that on September 6th, 1987, Rajesh and his other relations came to the clinic of Dr. Tulsi Dass at Rohtak where Manju Bala was taking training of a Nurse and administered her some poisonous substance in the tea. After taking tea, Manju Bala felt giddy. She was admitted in Post Graduate Institute of Medical Science (for short 'PGIMS'), Rohtak where she died on the same day, that is, September 6th, 1987 at 11 PM. The Medical Officer, PGIMS, Rohtak informed Police Station Civil Lines, Rohtak about the death of Manju Bala and Daily Diary Report No.17 dated September 6th, 1987 was recorded. Post-mortem examination was conducted by Dr. Subhash Juneja (PW-3). After post-mortem examination, Viscera and the belongings of the deceased were handed over by the Medical Officer to Jai Parkash Constable. The Medical Officer could not give opinion about the cause of death before obtaining the report from Chemical Examiner. 5. It has been further alleged by the complainant that the parcel of the viscera was handed over by Jai Parkash Constable to Jagdish Head-Constable on September 7th, 1987. Jagdish further handed over the Crl. Appeal No. 248-DB of 2000. 4 same to Amar Singh Head-Constable. The parcel of the viscera was not sent to the Forensic Science Laboratory, Haryana Madhuban, Karnal (for short 'FSL') for chemical analysis, by the Police officials, with the intention of screening the offenders from legal punishment and the same was not found in the Police Station as per the inquiry report submitted by Sh. M.S. Maan, Additional Superintendent of Police, Rohtak. Diwan Chand, Station House Officer did not register the First Information Report against the accused so, he was also a party to the criminal conspiracy to commit the offence, that is, murder of Manju Bala. 6. After recording preliminary evidence, Area Magistrate found grounds to proceed further against all the accused except Amar Singh-Constable. By order dated July 23rd, 1992, Jagdish Head-Constable accused-appellant and Diwan Singh SHO were summoned in relation to commission of offence punishable under Section 201 and 202 IPC and remaining accused were summoned in relation to commission of offences punishable under Sections 299, 300 and 498-A IPC. The case was then committed to the Court of Session. Charge in respect of commission of offence punishable under Section 201 IPC was framed against Jagdish Head Constable and Diwan Singh SHO whereas the remaining accused were charged for offences under Sections 302 read with Section 120-B IPC. All the accused pleaded not guilty and claimed trial. 7. During trial, Jagmohan Bajaj-accused died and the proceedings abated and stood dropped against him. 8. Prosecution, in support of its case, examined nine witnesses, namely, K.L. Malhotra (PW-1), Dr. Som Nath Virmani (PW-2), Crl. Appeal No. 248-DB of 2000. 5 Dr. Subhash Juneja (PW-3), Sunder Lal Gauri-complainant (PW-4), Nafe Singh, Head Constable (PW-5), Ram Niwas, Head Constable (PW-6), Jai Parkash (PW-7), Mangal Dutt (PW-8) and M.S. Mann, A.S.P., Rohtak (PW- 9). 9. When examined under Section 313 Cr.P.C, all the accused denied the allegations and pleaded innocence. It was added by Rajesh Taneja accused-appellant No.2 that there was matrimonial dispute between him and his wife Manju Bala. Litigation was pending between them. Since the viscera was misplaced, the complainant exploited the situation and harassed him and his other family members in order to blackmail them. Neither he nor his relations had gone to the clinic of Dr. Tulsi Dass on September 6th, 1987 to contact Manju Bala. Similar stance was taken by the family members of Rajesh Taneja. 10. Jagdish Head Constable-appellant No.2 denied the allegations and pleaded that he was implicated falsely. Diwan Singh, SHO- accused in his statement has stated that he remained posted as SHO in Police Station Civil Lines, Rohtak from February 22nd, 1988 to September 1, 1988. Since he was not posted as SHO, Police Station Civil Lines, Rohtak on the day of alleged occurrence, that is, September 6th, 1987, he was not concerned at all with the commission of the offence and has been implicated falsely. 11. Learned counsel on either side have been heard. Record over the file has been perused. 12. Firstly, a few admitted facts. Rajesh Taneja was married with Manju Bala on April 29th, 1983. The married life of the couple was not Crl. Appeal No. 248-DB of 2000. 6 happy one. Litigation between them was pending at Rohtak. Deceased was residing with her parents. She remained at her parents' house since December 14th, 1983 till her death which occurred on September 6th, 1987. She remained at her nuptial home only for a period of about eight months. She also gave birth to a female child on March 10th, 1984. She died on September 6th, 1987. The cause of her death could not be ascertained because the viscera was not sent to the FSL for chemical analysis. In this view of the matter, question arises as to whether Manju Bala was murdered by Rajesh Taneja-accused or not? 13. Manju Bala died on September 6th, 1987 but for the first time, complainant moved application (Exhibit PF) to the Superintendent of Police, Rohtak on June 14th, 1988 submitting that after post-mortem examination of Manju Bala, the viscera was handed over to Jai Parkash by the Medical Officer but the same was not sent to FSL and the inquiry be held. Another application (Exhibit PE) was moved on July 28th, 1988 to expedite the inquiry. The matter was inquired into by the Superintendent of Police, Rohtak. It was held in the inquiry report (Exhibit PL/1) conducted by Sh. M.S. Maan, Additional Superintendent of Police, Rohtak (PW-9) that Jagdish and Amar Singh were equally responsible for dereliction of duty and were accordingly punished by Superintendent of Police Rohtak by his order dated February 7th, 1989 (Exhibit PM). The complainant filed the present complaint on July 7th, 1990, that is, after three years of the occurrence. Indeed, there is no eye witness account in this occurrence. In the applications (Exhibit PF and PE) moved by the complainant, no allegations worth the name were made against Rajesh Taneja husband of the Crl. Appeal No. 248-DB of 2000. 7 deceased that he or any of his family members had murdered Manju Bala. In the complaint also, no specific role was attributed to any of the accused except that on the fateful day, that is, September 6th, 1987, Rajesh Taneja along with his family members(accused) came to the clinic of Dr. Tulsi Dass and administered some poisonous substance to her in tea whereas when the complainant appeared as PW-4, he specifically deposed that on September 6th, 1987, Rajesh Taneja along with his family members came to the clinic of Dr. Tulsi Dass and asked her daughter to seek decree of divorce by mutual consent and that they would pay her Rs.3000-4000/-. Jagmohan accused (since deceased) brought tea in seven glasses and served it. Her daughter took the tea and thereafter felt sick. It was about 6 PM. She reached her house at 7 PM and disclosed that Rajesh Taneja and his family members came to the clinic and Jagmohan brought the tea. Of course, it is an improvement to the earlier version given by the complainant. Had it been so, the entire matter could be brought to the notice of the Police immediately after the occurrence which the complainant did not opt for the reasons best known to him. As has been stated earlier, these facts were not brought to the notice of the Police when complainant moved applications (Exhibits PE & PF) after about one year of the occurrence. At that time too, his grievance was against the Police officials and nobody else. The statement of Dr. Som Nath Virmani (PW-2) who is a choice witness of the complainant is also significant. He is a Medical Practitioner at Rohtak. He was summoned by the complainant at his house after Manju Bala felt uneasy and her condition became serious. He examined Manju Bala and referred her to PGIMS, Rohtak. He has clearly stated that on inquiry made by him Crl. Appeal No. 248-DB of 2000. 8 from the deceased with regard to her condition, she informed him that she had taken tea and thereafter something happened to her. Had there been involvement of Rajesh Taneja in the murder of Manju Bala, she would have stated so before Dr. Som Nath Virmani. Trial Judge has not accepted the oral dying declaration made by the deceased to her father. To quote, the relevant passage is:- “In this case, nothing has come on record to the effect that Manju Bala was in a proper mental frame at the time she is alleged to have disclosed to her father Sunder Lal, the circumstances under which had taken tea with the accused. Therefore, last statement of Manju Bala cannot be accepted as a dying declaration.” 14. Trial Judge also did not believe the involvement of Rajesh Taneja's family members in the alleged commission of crime, that is, Sita Bai, Sham Lal, Raj and Bodh Ram Bhutani-accused by observing:- “Manju Bala had obtained a decree for restitution of conjugal rights on 8.1.1985. This shows that she was not being harassed by her in-laws for bringing insufficient dowry or for any other reason. That being so, in my considered opinion, deceased Manju Bala had no reason to be unhappy with Sita Bai her mother-in- law, Sham Lal, her husband's brother, Smt. Raj, her husband's married sister and Bodh Ram Bhutani, husband of her mother-in-law's sister. It is necessary to be mentioned here that there is nothing Crl. Appeal No. 248-DB of 2000. 9 in the evidence produced by the prosecution that Sita Bai, Bodh Raj, Raj Rani and Sham Lal had ever harassed Manju Bala for any matter whatsoever. Therefore, their implication in this case in my firm opinion is actuated by ill-will that the complainant had been nursing against them because of their close relationship with his son-in-law accused Rajesh. It would not be out of place to mention here that Sita Bai as also Bodh Ram are now 95 years and 93 years old as per their statements under Section 313 Cr.P.C.” 15. From the above referred observations of the Sessions Judge, he was of the considered opinion that Manju Bala did not make any dying declaration to her father and the above named family members of Rajesh Taneja were falsely implicated by the complainant. Since the oral dying declaration has not been believed by the trial Judge then from where, he gleaned that Rajesh or Jag Mohan Patwari (since deceased) were involved in the murder of Manju Bala. Certainly, it was mere a guess-work of the trial Judge. There was no eye witness account in this case. There was marital discord between Rajesh and his estranged wife. Trial Judge while convicting Rajesh observed (relevant extract of the judgment is being reproduced hereunder):- “After second marriage of her husband Rajesh during subsistence of the first marriage, she had all the reasons to be unhappy. And apprehending his prosecution under Section 494 IPC for bigamy also as payment of Crl. Appeal No. 248-DB of 2000. 10 maintenance to Manju Bala and their daughter Priyanka, accused Rajesh definitely had a motive to get rid of his first wife Manju Bala. Jagmohan, the person who had served tea to Manju Bala and others, has died during trial in this case. Involvement of Sita Bai, Bodh Ram, Raj Rani, Sham Lal, in the conspiracy to eliminate Manju Bala has not been proved by the prosecution beyond doubt. But the accusing finger unmistakably point to the involvement of Rajesh and Jag Mohan Patwari deceased in the conspiracy of cutting short the life of Manju Bala.” 16. From the above, the inevitable conclusion is that the trial Judge fell in serious error in convicting Rajesh Taneja on mere surmises and his approach was lopsided and rather, contumacious. In fact, it was a case wherein, no evidence at all was led by the complainant to prove the involvement of Rajesh in causing the murder of Manju Bala. 17. Now comes the case of Jagdish, Head-constable accused-appellant No.1. The only role attributed to Jagdish was that he was handed over the viscera of the deceased along with the relevant papers by Jai Parkash Constable on September 7th, 1987. He did not send the viscera to the FSL. He was not empowered to do so as deposed by Sh. M.S. Maan, Additional Superintendent of Police, Rohtak (PW-9) who conducted the inquiry also that the case property could only be sent to the FSL on the directions of the Investigator of the case. Jagdish was transferred on October 12th, 1987, that is after, 35 days of the deposit of the viscera with Crl. Appeal No. 248-DB of 2000. 11 him. The charge was taken over by Amar Singh, Constable. Amar Singh did not report to his higher officers that while taking the charge, viscera was not available in the Malkhana as has been observed in the inquiry report (Exhibit PL/1). 18. Strangely enough, the accused Jagdish in this case has been held guilty of the offence of murder and convicted and sentenced under Section 302 and 201 IPC. The trial Judge remained oblivious to the charge framed against the accused. Charge was framed only in respect of offence under Section 201 IPC. It is the elementary most proposition that an accused cannot be convicted for an offence unless charge in respect of that offence was framed. The matter will be different when charge is framed in respect of a more serious offence and the accused is convicted for a lesser offence of the same genre. It pains this Court to note that the trial Judge threw to the winds the basic considerations and without application of mind convicted the accused for offence of murder nonchalantly. It is rather, a sorry state of affairs that persons who undergo trial are convicted in this manner To convict persons in the absence of substantial evidence is travesty of justice. It is unfortunate that the accused in this case became victim of such a travesty when the trial Judge held them guilty and convicted. 19. The offence under Section 201 IPC could relate to destruction of evidence of the offence of murder only. Since the offence of murder has not been proved, it will be ridiculous to hold any of the two accused guilty for destroying the evidence relating to murder. 20. To sum up, the complaint was filed belatedly, complainant failed to prove from any angle involvement of the appellants in Crl. Appeal No. 248-DB of 2000. 12 causing the murder of Manju Bala. There was no sufficient or reliable evidence to bring the guilt home. 21. The appeal is accordingly, accepted. The impugned judgment of conviction and order of sentence passed by the trial Judge are set-aside and the appellants are acquitted of the charges. The bail/surety bonds shall stand discharged. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 29.07.2009. SN