Crl.Appeal Nos.922 & 904 of 2004 Page 1 of 45 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : February 10, 2010 Judgment Delivered on : March 11, 2010 + CRL.APPEAL NO.922/2004 BALBIR SINGH ..... Appellant Through: Mr.K.K.Sud, Senior Advocate with Mr.Mukesh Kalia, Advocate and Ms.Sumita Kapil, Advocate. versus STATE ..... Respondent Through: Mr.M.N.Dudeja, A.P.P. + CRL.APPEAL NO.904/2004 KAMLA DEVI ..... Appellant Through: Mr.Mukesh Kalia, Advocate and Ms.Sumita Kapil, Advocate. versus STATE ..... Respondent Through: Mr.M.N.Dudeja, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Wrought with discrimination and prejudiced by rituals, Indian society has dealt the girl child a rough hand starting Crl.Appeal Nos.922 & 904 of 2004 Page 2 of 45 even before her birth and ending with the dusk of her life. Amidst uproar of gender equality and law enforcement, female infants are found dumped in the trash, by the dozens, and unborn female foetuses continue to be sniffed in the womb. The present case highlights the unfortunate plight of the girl child where the parents and siblings of the deceased girl, betrayed the love and trust reposed by the deceased in them by helping her wrongdoers to go scot free. 2. Process of criminal law was set into motion when at around 3.00 P.M. on 31.01.2002 Const.Pappu Singh PW-5, recorded an entry in the daily diary Ex.PW-5 noting therein that one Trilok Singh PW-2, came to Police Station Tilak Nagar and informed that his sister Pinki Kaur (hereinafter referred to as the “deceased”) has died at her matrimonial house bearing Municipal No.B-58, Tilak Vihar, Delhi and that he suspects some foul play in the death of the deceased. A copy of the aforesaid DD entry was handed over to SI Anil Kumar PW-17, for investigation upon which accompanied by Const.Vinod Kumar he proceeded to the house in question where he found that the deceased was lying dead on the floor of a room in the house in question; that there was a ligature mark on the neck of the deceased; that there were some burn marks on the left side of the chest of the deceased and that Surjit Singh PW-1 Crl.Appeal Nos.922 & 904 of 2004 Page 3 of 45 and Trilok Singh PW-2, the brothers of the deceased, Judia Singh PW-3, the father of the deceased, Vidya Kaur PW-7, the sister of the deceased and appellants Balbir Singh and Kamla Devi, the husband and mother-in-law of the deceased respectively, were present there. 3. SI Anil Kumar PW-17, recorded the statement Ex.PW-2/A of Trilok Singh and made an endorsement Ex.PW-17/A thereon, and at around 04.35 P.M. handed over the same to Const.Vinod Kumar for registration of an FIR. Const.Vinod Kumar took the endorsement Ex.PW-17/A to the police station and handed over the same to HC Jai Kumar PW-13, who recorded the FIR No.61/2002 Ex.PW-13/A. 4. In his statement Ex.PW-2/A, Trilok Singh stated that the marriage of the deceased was solemnized with appellant Balbir Singh on 05.12.2001. The appellants were harassing the deceased for bringing insufficient dowry. On 28.01.2002 he and his sister Vidya Kaur went to the matrimonial house of the deceased where the deceased told them that she is being harassed for bringing insufficient dowry. He and his sister tried to counsel the appellants upon which the appellants told them that they will keep harassing the deceased till their demands for dowry are met. Crl.Appeal Nos.922 & 904 of 2004 Page 4 of 45 5. Thereafter SI Anil Kumar recorded the statements Mark PW-1/A, Ex.PW-3/B and Mark PW-7/A of Surjeet Singh, Judia Singh and Vidya Kaur respectively under Section 161 Cr.P.C. wherein they also stated that the deceased was being harassed by the appellants for bringing insufficient dowry. 6. SI Anil Kumar PW-17, prepared the rough site plan Ex.PW-17/B of the house in question; recording therein at point „A‟ the room where the deceased was found dead. In the meantime, Gurdeep Singh PW-11, reached the house in question; on being summoned. Gurdeep Singh took the photographs Ex.PW-11/A-1 to Ex.PW-11/A-8 of the body of the deceased and the room where the deceased was found dead; negatives whereof are Ex.PW-11/B-1 to Ex.PW-11/B-8. 7. Since the needle of suspicion was pointing towards the appellants, SI Anil Kumar arrested them. On being interrogated by SI Anil Kumar in the presence of Const.Pappu Singh PW-5, appellant Balbir Singh made a disclosure statement Ex.PW-2/F wherein he stated that he and appellant Kamla Devi had murdered the deceased and that he can get recovered a tie and a press used by him for murdering the deceased. Pursuant thereto, appellant Balbir Singh led the aforesaid police officers to a room in the house in question and got recovered a tie and Crl.Appeal Nos.922 & 904 of 2004 Page 5 of 45 a press from an almirah lying in the said room and seized the aforesaid articles vide memo Ex.PW-17/C. 8. On the next day i.e. 01.02.2002 Suraj Bhan PW-16, Sub- Divisional Magistrate, reached the house in question and recorded the statement Ex.PW-3/A of Judia Singh wherein he stated that the deceased was being harassed by the appellants for bringing insufficient dowry. 9. On the day when the dead body of Pinki Kaur was seen by the police in her matrimonial house i.e. on 31.1.2002, the body was seized and sent to the mortuary where on 1.2.2002 Dr.Lalit Kumar PW-4 conducted the post-mortem and prepared the post-mortem report Ex.PW-4/A. The relevant portion of the post-mortem report Ex.PW-4/A of the deceased reads as under:- “......Blood stained (illegible) fluid just below the nostrils. Bleeding from pin hole opening in the middle of pina of right ear. Face is seen swollen and flushed. Petechial haemorrhagic spots are seen on both cheeks and chin and both ear lobules. Mouth is partially open and lips are cyanosed and tongue is seen partially coming out of mouth and pressed between the teeth in front. Eyes are seen closed and eye lids are swollen and greenish blue in colour. On cutting the eye lids streak of blood (clotted) is seen present just below (illegible) of the eye lids which is suggestive of blunt impact on both the eyes. On opening eye lids cornea is seen hazy and cloudy. Inner and outer canthus and inner canthus of both the eyes shows haemorrhage and petechial haemorrhagic spot on conjunctive of both the eyes. Crl.Appeal Nos.922 & 904 of 2004 Page 6 of 45 The pupil of both eyes is dilated.....Hands are clenched. Injuries 1. An area of burn injury (11 x 9 cm), dark brown in colour and its margins are irregular and situated in upper part of chest on left side in front and more on medial side and its upper boundary is seen at base of neck and cuts all layer of skin in this area is seen absent. It is hard in consistency and irregular in shape and its margin shows sign of burning. 2. One abraded ligature mark placed transversely in the upper part of neck at the level of upper border of thyroid cartilage all around the neck. The ligature mark is more prominent in front of neck and both side of the neck while it is faintly present on back side of the neck just below the posterior hair line. The ligature mark dark brown in colour at intermittent places while it is red in between. The width of the ligature mark is 2 cm in front of the neck while it varies from 2 cm to 2.5 cm and goes backward. It is hard, dried and parchment like and its margins are ecchymosed. No ligature mark is seen tied around the neck at the time of post- mortem. ..... Brain Matter (Illegible) - Congested and shows petechial haemorrhagic spots all over the surface of the brain. ..... Mouth and Tongue - Posterior part of tongue is seen swollen and bruised. Neck, Larynx, Thyroid and other neck structure- On cutting the ligature mark there is extravasation in subcutananeous tissues under lying ligature mark and also in adjacent tissue and neck muscles. Fracture of right cornua of hyoid bone and haemorrhage is seen around the fractured site. ..... Crl.Appeal Nos.922 & 904 of 2004 Page 7 of 45 Trachea and Bronchi – Illegible of trachea is congested and covered with frothy mucus. .... Lungs – Plura and lungs of both the sides are seen markedly congested and on cutting dark colour blood is seen coming out. Heart and pericardial sac – Right side of the heart is filled with dark coloured fluidly blood and left side of heart is empty. ..... Stomach and content – Undigested food 400 mg. ..... Death is due to asphyxia following strangulation. All injuries are anti-mortem and are of same duration. Time since death is approximately 39 to 40 hrs.” 10. Armed with the aforesaid materials, the police filed a charge sheet under Sections 498-A and 304-B IPC read with Section 34 IPC against the appellants. 11. On 17.07.2002 the case was fixed before the learned Trial Court for arguments on framing of charges against the appellants. During arguments, it was contended by the learned public prosecutor that a charge for murdering the deceased i.e. an offence punishable under Section 302 IPC be framed against the appellants. Vide order dated 25.07.2002 the learned Trial Court repelled the aforesaid argument advanced by the learned public prosecutor in following terms:- Crl.Appeal Nos.922 & 904 of 2004 Page 8 of 45 “Addl P.P. has referred to the Post Mortem report according to which cause of death is Asphyxia following strangulation and all the injuries and ligature mark are ante mortem in nature and of same duration. Time since death is 39/40 hours. Post Mortem was conducted on 01.2.2002 at about 4.30 P.M. In that Post Mortem report the external injuries came to be reported which is in an area of burn injury 11 x 9 cm which is situate in upper part of chest. According to prosecution the burn portion allegedly was caused by the accused persons with the hot Iron Press. These are the reasons which the ld. Addl. P.P. make ground for attracting the offence of murder under section 304 IPC. (It may be noted here that due to a typographical error Section 302 IPC has been referred as Section 304 IPC) I have given thoughtful consideration to this argument of ld. Addl. P.P. But at this stage I am not inclined to accept this argument since there is no direct evidence so at this stage and on perusal of the material and the file before me I find that there exists a prima facie case for the offence under section 498A IPC and 304B IPC read with section 34 IPC against both the accused persons.” (Emphasis Supplied) 12. At the trial, the prosecution examined 17 witnesses. 13. Witnesses Surjeet Singh PW-1, Trilok Singh PW-2, Judia Singh PW-3 and Vidya Kaur PW-7, the family members of the deceased, did not support the case of the prosecution and turn hostile. They denied having made statements Mark PW-1/A, Ex.PW-2/A, Ex.PW-3/B and Mark PW-7/A to the police. Judia Singh PW-3, also denied having made statement Ex.PW-3/A to Sub-Divisional Magistrate. Additionally, Trilok Singh PW-2, deposed that in the morning of 31.01.2002 one Darshan Singh informed him over telephone about the death of the deceased Crl.Appeal Nos.922 & 904 of 2004 Page 9 of 45 and that the deceased was happy in her matrimonial home. Vidya Kaur PW-7, also deposed that the deceased was happy in her matrimonial home. Thus, the parents of the deceased and her siblings denied that the deceased was being troubled and harassed for dowry by her husband and her mother-in-law, the only two persons with whom she was residing in her matrimonial house. They resiled from what they had told the learned SDM and the investigating officer. It is apparent that the parents and the siblings of Pinki Kaur betrayed her love, confidence and trust. 14. Darshan Singh PW-6, a neighbour of the appellants and the deceased, deposed that he informed the brother of the deceased Trilok Singh over telephone about the death of the deceased. 15. On 07.03.2003 Dr.Lalit Kumar PW-4, was examined by the prosecution. He deposed that the post-mortem report Ex.PW-4/A of the deceased was prepared by him and that his opinion pertaining to the cause of the death of the deceased, based on his observations during post-mortem was that it was a case of homicide and not suicide. 16. On 24.02.2004 the learned public prosecutor submitted before the learned Trial Court that a charge for committing Crl.Appeal Nos.922 & 904 of 2004 Page 10 of 45 offence punishable under Section 302 IPC be framed against the appellants, for the evidence of Dr.Lalit Kumar establishes that the cause of death of the deceased was strangulation. The aforesaid argument was accepted by the learned Trial Court in the following terms:- “....At this stage APP submits that charge is liable to be amended in view of the autopsy surgeon Dr.Lalit Kumar. It is pointed out that the doctor had opined that the death has been caused due to asphyxia due to strangulation and that all injuries were ante mortem. This witness was not cross-examined. Hence it was contended that the charge be modified to one under Section 302 IPC. Learned counsel for the defence on the other hand submits that the charge has been framed under 498A/304B IPC read with Section 34 IPC after hearing all the submissions on behalf of the ld.APP and therefore, there was no occasion now to re-frame the charge. The learned counsel for the defence points out that the relatives of the deceased are all hostile to the prosecution case which factor be also considered. This would not be the stage in which the assess the evidence on the record. The order dated 25.7.2002 whereby the charge was directed to be framed under Section 498A/304B read with Section 34 IPC did consider the submissions of the learned APP based on the Post Mortem report. The learned court vide the said order observed that at that stage since there was no direct evidence, prima facie case for the offence under Section 498 A and 304 B read with Section 34 IPC alone was made out. However, in the light of the statement on oath of the autopsy surgeon made on 7.3.2003, it does appear that the charge has to be reframed since the doctor‟s opinion is that death is due to asphyxia following strangulation. Hence, I direct that the charge be re-framed to include an additional charge under Section 302 IPC.” Crl.Appeal Nos.922 & 904 of 2004 Page 11 of 45 17. Thereafter, and opportunity was granted to the appellants to re-summon for purposes of cross-examination the witnesses who had been examined till date. The appellants chose only to cross-examine Dr.Lalit Kumar and hence Dr.Lalit Kumar PW-4, was recalled for cross- examination. 18. Though the learned public prosecutor did not pray for any leave to further examine Dr.Lalit Kumar, but we note that when Dr.Lalit Kumar was re-summoned, he was further examined in chief and then cross-examined without any objection being raised by the appellants pertaining to Dr.Lalit Kumar being further examined. 19. Thus, save and except to note that during arguments in the appeal an issue was raised qua the further examination of Dr.Lalit Kumar when he was re-summoned, but since no prejudice was shown as having been caused to the appellants, we note no further. 20. On being cross-examined about the burn mark found on the chest of the deceased, Dr.Lalit Kumar stated (Quote): ‘The burn injury found on the person of the deceased is not possible if the heated object fell on the body of the deceased or the body fell over the heated object since such burn are possible Crl.Appeal Nos.922 & 904 of 2004 Page 12 of 45 when it has been applied on to the body.’ On being cross- examined about the ligature mark found on the neck of the deceased, Dr.Lalit Kumar stated (Quote): ‘The injury No.2 is not possible if a person hang herself because the nature of the ligature mark coupled with the placement ligature mark and the internal injury are possible on strangulation.’ It may be noted here that the defence neither put any question nor gave any suggestion to the witness to the effect that he does not have adequate knowledge in the subject of forensic pathology. 21. In their examination under Section 313 Cr.P.C. save and except admitting the facts that the marriage between the deceased and appellant Balbir Singh was solemnized on 05.12.2001; that they and the deceased resided in the house where the deceased was found dead and that SI Anil Kumar visited the house in question on 31.01.2002, the appellants denied everything. 22. With regard to the explanation for the death of the deceased, appellant Balbir Singh stated as under:- “I and my mother are innocent. Since the death had taken place in our house we have been falsely implicated in this case. We were sitting outside the house when my wife committed suicide. The burn marks were sustained by her while cooking.” Crl.Appeal Nos.922 & 904 of 2004 Page 13 of 45 23. With regard to the explanation for the death of the deceased, appellant Kamla Devi stated as under:- “It is a false case. I am innocent. I do not know anything about the death. We had got her married to my son in great happiness. I do not know how she died. We were sitting outside the house. She was making rotis. I do not know how she sustained burn injuries.” 24. In defence, the appellants examined Chammi Kaur DW-1. She deposed that she resides in the vicinity of the matrimonial house of the deceased. She had met the deceased on several occasions. The deceased never made any complaint to her and was happy in her matrimonial house. On one day in the year 2004 at about 6-6.30 P.M. she learnt from some children that the deceased had sustained burn injuries upon which she went to the matrimonial house of the deceased where she met the deceased. She noticed a burn mark on the chest of the deceased. The deceased told her that she had sustained burn injuries when she felt giddy while cooking and fell on a hot object. On the next morning she came to know that the deceased had hanged herself. 25. Vide judgment and order dated 15.10.2004 the learned Trial Court convicted the appellants qua the charge under Section 302 IPC read with Section 34 IPC but acquitted them qua the charge under Sections 498-A and 304 B IPC read with Crl.Appeal Nos.922 & 904 of 2004 Page 14 of 45 Section 34 IPC. The learned Trial Court acquitted the appellants qua charges under Sections 498-A IPC read with Section 34 IPC framed against them on the ground that the prosecution has not been able to establish that the appellants had demanded dowry or that they had harassed the deceased for dowry, since the relatives of the deceased did not support the case of the prosecution. Insofar as the charge under Section 302 IPC framed against the appellants was concerned, it was held by the learned Trial Court that in view of Section 106 of Evidence Act it was incumbent upon the appellants to explain as to how the deceased died a homicidal death as also how the deceased sustained injuries found on her person as the death of the deceased took place in a house at the time when the appellants were present there. It has been held that the fact that the appellants did not furnish a satisfactory explanation in respect of aforesaid circumstances is a clear pointer to the fact that the appellants committed the murder of the deceased. Vide order dated 16.10.2004 learned Trial Court sentenced the appellants to undergo imprisonment for life for committing offence punishable under Section 302 IPC read with Section 34 IPC. Crl.Appeal Nos.922 & 904 of 2004 Page 15 of 45 26. During the hearing of the present appeal, following four arguments were advanced by the learned senior counsel for the appellants:- A The first argument advanced by the learned senior counsel was predicated upon the order dated 24.02.2002 passed by the learned Trial Court. Learned senior counsel argued that a reading of the order dated 24.02.2002 shows that the learned Trial Court did not consider it proper to frame a charge against the appellants for committing offence punishable under Section 302 IPC and therefore once having “consciously” dropped the charge under Section 302 IPC against the appellants the learned Trial Court was not justified in subsequently framing the same charge against the appellants. B The second argument advanced by the learned senior counsel was predicated upon the evidence of Dr.Lalit Kumar PW-4 and Section 45 of the Evidence Act. It was argued by the learned senior counsel that in view of language of Section 45 of Evidence Act before a person can be characterized as an expert, it is necessary that there must be some material on record to show that he is skilled in the subject on which he testifies and is possessed with adequate knowledge Crl.Appeal Nos.922 & 904 of 2004 Page 16 of 45 concerning the same. Thus, before the testimony of an expert witness becomes admissible, his competency as an expert must be shown, by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. It was argued that in view of the aforesaid legal position, the evidence of Dr.Lalit Kumar should not be read in evidence for the reason the prosecution has not led any evidence to show that Dr.Lalit Kumar was “skilled” in the subject of forensic pathology. In support of the said argument, reliance was placed upon the decision of Allahabad High Court reported as Balkrishna Das Agarwal v Radha Devi AIR 1989 All 33. C The third submission advanced by the learned senior counsel was predicated upon the post-mortem report Ex.PW- 4/A of the deceased and Modi‟s Medical Jurisprudence and Toxicology. Counsel submitted that as per Modi‟s „Medical Jurisprudence and Toxicology‟ in case of strangulation the ligature mark found on the neck of the victim is continuous; that the ligature mark is placed low down in the neck; that the base of the ligature mark is soft and reddish and scratches, abrasions, finger nail marks and bruises are usually found on the face, neck and other parts of the body of the victim while in case of hanging the ligature mark found on the neck of the Crl.Appeal Nos.922 & 904 of 2004 Page 17 of 45 victim is non-continuous; that the ligature is placed high up in the neck; that the base of the mark is hard, yellow and parchment-like and scratches, abrasions, finger nail marks and bruises are usually not found on the face, neck and other parts of the body of the victim. In the backdrop of aforesaid literature, counsel drew attention of the court to the photographs Ex.PW-11/A-5 and Ex.PW-11/A-8 and the post- mortem report Ex.PW-4/A of the deceased. Counsel pointed out that the photographs Ex.PW-11/A-5 and Ex.PW-11/A-8 of the deceased show that the ligature mark found on the neck of the deceased was non-continuous and that the post-mortem report Ex.PW-4/A of the deceased records that the ligature mark found on the neck of the deceased was placed in the upper part of the neck of the deceased and that the same was hard, dried and parchment-like. Counsel lastly pointed out that a reading of the post-mortem report Ex.PW-4/A of the deceased shows that no scratches, abrasions, finger nail marks or bruises were found on the face, neck