Case: Bija  Vs. State Of Haryana

was put near the dead body of deceased Santro to give an impression to police that death was caused due to electrocution. It was because of the investigating officer’s efforts that the falsehood had come to light and it was established that there was no electric connection and death was not due to electrocution but due to asphyxia by smothering. Regarding evidence of Shero-sister of deceased, it was submitted that though she was sister of deceased Santro, she was married to real brother of Raghbir Singh and Jagdish and son of Bija and Sona Devi. Shero was staying with her husband. Obviously, in the circumstances, she was expected to support the defence. Her evidence was, hence, rightly discarded by both the Courts. Since all the appellants had common intention to kill deceased Santro, the Courts below were right in ordering conviction of all of them under Section 302 read with Section 34, IPC and no interference is called for. The appeal, therefore, deserves to be dismissed. 13. Having heard learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. From the evidence of prosecution witnesses and the findings recorded by both the Courts in the light of evidence of PW9-Dr. Kakkar, it was proved beyond reasonable doubt that the cause of death of Santro was asphyxia due to smothering. An impression was sought to be created by the accused that cause of death was electrocution but from the evidence of PW10-Inspector Gulzar Singh, the possibility was ruled out. It was also established from medical evidence that the death was not due to ailment of Epilepsy. Both the Courts, in our opinion, therefore, were right in coming to the conclusion that death of Santro was homicidal in nature and the cause of death was Asphyxia due to smothering. 14. The Courts below were right in not relying upon the deposition of DW1-Shero and in observing that she was under pressure as she was staying at matrimonial home and with a view to protect her, she deposed in favour of her in-laws as she wanted to save them. In our opinion, it could not be said that by drawing such inference, the trial Court or the High Court had committed any error. This is coupled with the fact that a show was made by the accused persons to mislead the police and investigating agency by placing electric wire near the dead body of deceased Santro and also putting forward a ground of death as ailment of Epilepsy, ruled out by medical evidence. 15. There was motive on the part of the accused in doing away with Santro. Though both the Courts had not believed the case of demand of dowry and cruelty towards deceased Santro for non-payment of sufficient dowry by the parents of deceased Santro in view of the circumstance that another sister Shero married to one of the brothers of Raghbir Singh had not stated anything as to demand of dowry by the accused persons and she was living at the matrimonial home peacefully, it has come on record that Santro was not good-looking lady. Moreover, though her marriage was performed with Raghbir Singh in 1988 along with Shero, for about 10 years i.e. upto 1997, she could not conceive and could not bear a child. Raghbir Singh was totally indifferent and abandoned her. So much so that complaints were made by PW2-Lakhmi Chand (father of deceased Santro) to Panchayat and Panchayat had to intervene. In 1997, finally, the Panchayat practically forced the family members of the accused to accept Santro and keep her in their family and it was because of the compulsion and pressure of Panchayat that accused had to agree to marriage between Jagdish and Santro. Thus, there was every reason for the accused to be unhappy with deceased Santro. This is further clear from the fact that on the intervening night of 1st and 2nd May, 1998, she was alone in her room on the ground floor and the dead body of deceased Santro was found in the morning of May 2, 1998 from the house of the accused. 16. But, there is no evidence that parents of the accused No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of the deceased-accused No.2-Raghbir Singh had common intention to kill deceased Santro and they were parties in killing the deceased. It is no doubt true that Jagdish, who was the present husband, had grievance against Santro. He had to marry Santro who was neither beautiful nor able to bear child. The marriage was subsisting. After Santro married to Jagdish in 1997, he was unhappy as she could not conceive. Presumably because of that, he was also indifferent towards her and in the intervening night of May 1 & 2, 1998, he was not along with her in the company of his wife in the room where she was sleeping but was on the roof along with other family members. But, in view of the fact that accused Nos. 1, 2 & 4 could not be said to be directly connected with the death of Santro, in absence of clear evidence to that effect, the Courts below could not have convicted them by invoking Section 34, IPC. So-called extra judicial confession by Smt. Sona Devi, accused No.4 before Gaje Singh and Amar Singh has not been proved. Direct, immediate and proximate grievance at the relevant time was for accused Jagdish. Hence, his conviction for an offence punishable under Section 302, IPC recorded by the trial Court and confirmed by the High Court cannot be said to be contrary to law or otherwise unlawful. But there was no sufficient evidence as to common intention on the part of the other accused in absence of requisite material on record. In our considered opinion, therefore, Section 34, IPC could not have been invoked by the Courts below. To that extent, therefore, both the judgments deserve to be set aside. 17. For the foregoing reasons, the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion,the appeal deserves to be partly allowed. From the evidence of prosecution witnesses and the findings recorded by both the Courts in the light of evidence of PW9-Dr. Kakkar, it was proved beyond reasonable doubt that the cause of death of Santro was asphyxia due to smothering. An impression was sought to be created by the accused that cause of death was electrocution but from the evidence of PW10-Inspector Gulzar Singh, the possibility was ruled out. It was also established from medical evidence that the death was not due to ailment of Epilepsy. Both the Courts, in our opinion, therefore, were right in coming to the conclusion that death of Santro was homicidal in nature and the cause of death was Asphyxia due toCourts below were right in not relying upon the deposition of DW1-Shero and in observing that she was under pressure as she was staying at matrimonial home and with a view to protect her, she deposed in favour of her in-laws as she wanted to save them.In our opinion,it could not be said that by drawing such inference, the trial Court or the High Court had committed any error. This is coupled with the fact that a show was made by the accused persons to mislead the police and investigating agency by placing electric wire near the dead body of deceased Santro and also putting forward a ground of death as ailment of Epilepsy, ruled out by medicalwas motive on the part of the accused in doing away with Santro. Though both the Courts had not believed the case of demand of dowry and cruelty towards deceased Santro for non-payment of sufficient dowry by the parents of deceased Santro in view of the circumstance that another sister Shero married to one of the brothers of Raghbir Singh had not stated anything as to demand of dowry by the accused persons and she was living at the matrimonial home peacefully, it has come on record that Santro was not good-looking lady. Moreover, though her marriage was performed with Raghbir Singh in 1988 along with Shero, for about 10 years i.e. upto 1997, she could not conceive and could not bear a child. Raghbir Singh was totally indifferent and abandoned her. So much so that complaints were made by PW2-Lakhmi Chand (father of deceased Santro) to Panchayat and Panchayat had to intervene. In 1997, finally, the Panchayat practically forced the family members of the accused to accept Santro and keep her in their family and it was because of the compulsion and pressure of Panchayat that accused had to agree to marriage between Jagdish and Santro. Thus, there was every reason for the accused to be unhappy with deceased Santro. This is further clear from the fact that on the intervening night of 1st and 2nd May, 1998, she was alone in her room on the ground floor and the dead body of deceased Santro was found in the morning of May 2, 1998 from the house of thethere is no evidence that parents of the accused No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of the deceased-accused No.2-Raghbir Singh had common intention to kill deceased Santro and they were parties in killing the deceased. It is no doubt true that Jagdish, who was the present husband, had grievance against Santro. He had to marry Santro who was neither beautiful nor able to bear child. The marriage was subsisting. After Santro married to Jagdish in 1997, he was unhappy as she could not conceive. Presumably because of that, he was also indifferent towards her and in the intervening night of May 1 & 2, 1998, he was not along with her in the company of his wife in the room where she was sleeping but was on the roof along with other family members. But, in view of the fact that accused Nos. 1, 2 & 4 could not be said to be directly connected with the death of Santro, in absence of clear evidence to that effect, the Courts below could not have convicted them by invoking Section 34, IPC. So-called extra judicial confession by Smt. Sona Devi, accused No.4 before Gaje Singh and Amar Singh has not been proved. Direct, immediate and proximate grievance at the relevant time was for accused Jagdish. Hence, his conviction for an offence punishable under Section 302, IPC recorded by the trial Court and confirmed by the High Court cannot be said to be contrary to law or otherwise unlawful. But there was no sufficient evidence as to common intention on the part of the other accused in absence of requisite material on record. In our considered opinion, therefore, Section 34, IPC could not have been invoked by the Courts below. To that extent, therefore, both the judgments deserve to be set aside.