Punjab-Haryana High Court
Harvinder Singh vs State Of Haryana on 5 May, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.583-SB of 2002
Date of decision: 5th May, 2010
Harvinder Singh
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. S.S. Dinarpur, Advocate for the appellant.
Mr. Manish Deswal, Deputy Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J.
Harvinder Singh has assailed his conviction and sentence recorded by the Additional Sessions Judge, Ambala vide his impugned judgment dated March 28, 2002 and order of sentence dated March 30, 2002 in the instant appeal.
The appellant Harvinder Singh was married with Jaswinder Kaur on 22nd October, 2000. On 21st May, 2001 at about 7.00 a.m., Jaswinder Kaur was found dead in the circumstances other than normal in her matrimonial home. For this act, the appellant was named as an accused in case FIR No.65 dated 21.05.2001 registered at Police Station Barara, District Ambala under Sections 302 and 304-B IPC. The appellant was charged and tried for the offence punishable under Section 302 IPC and in alternate under Sections 304-B and 498-A IPC. Vide a separate order, on March 30, 2002, the appellant was sentenced under Section Criminal Appeal No.583-SB of 2002 2 304-B IPC to undergo rigorous imprisonment for a period of nine years and under Section 498-A IPC to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Both the sentences were ordered to run concurrently.
Brief facts of the case can be gathered from the statement Ex.PA made by Amar Singh, father of the deceased Jaswinder Kaur, to SI Darshanpal Singh PW-10. Amar Singh stated that he was a resident of village Jaula Khurd, Police Station Lalru, District Patiala and was an agriculturist. He was father of three daughters and one son. The eldest daughter Jaswinder Kaur was married with Harvinder Singh son of Gurdeep Singh, resident of village Khanpur Dubli on 22nd October, 2000 according to customary rites. After a few days of marriage, Harvinder Singh started beating his wife and demanding a motorcycle in dowry. This fact was disclosed by the deceased Jaswinder Kaur to the complainant, who convened a private Panchayat on 2/3 occasions and expressed his helplessness to give the motorcycle. Harvinder Singh assured the Panchayat that in future he will not commit such a mistake. But after a few days, he again started beating his wife and demanded a motorcycle. The complainant consoled his daughter and assured that by passage of time, everything would be all right. 3/4 days before the date of occurrence, i.e. 21st May, 2001, the daughter of the complainant had informed him that her husband had given her beatings, repeated the demand of dowry and had also given a threat that in case his demand is not fulfilled, he would liquidate her. As Harvinder Singh was engaged in practice of medicine, the complainant had an apprehension that he might administer some poisonous substance to his daughter.
On 21st May, 2001 at about 7.00 a.m. a telephonic message was received from one Rajbir son of Sher Singh that Jaswinder Kaur had Criminal Appeal No.583-SB of 2002 3 been killed. On receiving the information, the complainant along with Jaspal Singh son of Mall Singh, Sher Singh, Mall Singh son of Kartar Singh etc. reached at village Dubli and found the dead body of his daughter, which was lying on the floor in the courtyard. On her face, arms and neck, there were signs of injuries and bleeding. The daughter of complainant was having five months' pregnancy. The complainant had a belief that his son-in-law Harvinder Singh, after administering some poisonous substance or sedative as injection, had killed his daughter. On receipt of the above information, formal FIR Ex.PA/1 was registered.
The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused appellant. As stated earlier, after commitment the appellant was charged for the offences mentioned above.
Complainant Amar Singh appeared as PW-5. He reiterated as to what was stated by him in his statement Ex.PA. He further stated that he had spent Rs.2.00 lacs at the time of marriage of his daughter. He further stated that the dead body of his daughter was taken to Civil Hospital, Ambala Cantt. for post mortem. In cross examination, this witness stated that at the time of engagement ceremony of his daughter, there was no demand of dowry on the part of the accused appellant and no demand was made by the appellant in the marriage. He further stated that the telephone connection was installed at the house of his brother. His daughter had studied upto 8th Standard. He further admitted that the accused appellant never misbehaved with him and that he was earning handsome money from the medical profession. Many villagers used to take medicine from him. He used to give injections to the patients suffering from ailments like fever and pain etc. No substantial gain could be made by the defence in the cross examination of this witness.
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Jaspal Singh nephew of the complainant appeared as PW-8 and corroborated the testimony of the complainant Amar Singh PW-5. He also stated in his cross examination that no demand was made by the accused before the marriage but he started demanding a motorcycle after the marriage. He further stated that the accused had never misbehaved with the deceased in his presence, but this witness had accompanied the Panchayat to the parents of the accused twice for settlement. Firstly, they had gone after 3/4 days of the marriage and for the second time after about 1 ½ months.
Sher Singh PW-9 stated that the deceased Jaswinder Kaur was his niece. He further stated that the deceased was ill-treated by the accused and a motorcycle was demanded by them. This witness, accompanied by the complainant, had reached the matrimonial home of the deceased Jaswinder Kaur, when the information of her death was received. He further identified his signatures on the memo Ex.PW9/A, vide which the police had taken into possession three injections from the clinic of the accused appellant.
Dr. P.K. Nigam PW-6 was a member of the Medical Board, which had performed autopsy on the dead body of Jaswinder Kaur on 21st May, 2001. The observations of the Medical Board in the testimony of this witness can be noticed as under:
"Dark red clots of blood were present in both nostrils. Rigor mortis was present. There were multiple small abrasions irregular in shape were present on left side in submandibular region and upper part of the neck, covered with dark red clots of blood.
The following injuries were present:
1. Multiple abrasions irregular in shape covered with dark red clot of blood present on left nostril. Blood clots were present in both the nostrils.Criminal Appeal No.583-SB of 2002 5
2. Multiple small abrasions were present around lower lip on both sides of midline.
3. A bruise 6 cm x 5 cm was present on anterior aspect of left elbow, bluish in colour, a prick mark was present in the middle, diffuse swelling was present around.
4. A bruise 8 cm x 6 cm on antero medial aspect of left upper arm bluish in colour, diffuse swelling present around a prick mark with clots of blood present in the middle.
5. A bruise 10 cm x 5 cm on antero middle aspect left upper arm in upper part, bluish in colour, prick mark with clots of blood present in the middle (injection mark). Diffuse swelling was present around.
6. A bruise 10 cm x 7 cm was present on anterior aspect of right upper arm in the upper half, bluish in colour prick mark (injection mark), present in middle. Diffuse swelling was present.
7. A bruise 8 cm x 6 cm on antero medial aspect right upper arm in lower half, bluish in colour, prick mark was present.
8. A bruise 7 cm x 5 cm on antero medial aspect right forearm in upper half, bluish in colour, prick mark was present.
9. A bruise 6 cm x 5 cm was present on anterior aspect right forearm in lower half, bluish discolouration was present, prick mark was present.
10. A bruise 2 cm x 0.5 cm on dorsum of left foot, bluish discolouration was present, prick mark with clots of blood was present.
Scalp, skull and vertabre were healthy. Membranes of the brain were congested. Walls, ribs and cartilages were healthy. Both pleourae were congested. Larynx and trachea were congested. Both lungs were congested. Pericardium and heart were healthy. Chambers of heart contained dark red blood. Blood from heart was sent for analysis.
Criminal Appeal No.583-SB of 2002 6
Anterior abdomen wall was healthy. Peritoneum was congested. Mouth, pharynx and Oesophagus were congested. Stomach with contents was sent for chemical analysis. Pieces of small intestine and large intestine along with contents were sent for chemical analysis. Pieces of lever spleen andkidney were sent for chemical analysis. Urinary bladder was healthy. Organs of generation external and internal: Uterus was felt at level of umbilicus 22 to 24 weeks size. A tear was present on the right side adjoining labia majora, extending to right antero lateral wall of vagina upto antero lateral aspect of lower part of uterus. Uterine cavity contained dark red clotted blood along with a dead male foetus. Dark red blood was present in pelvic cavity."
The viscera was sent to the Chemical Examiner for analysis and the cause of death was defeated. However, in cross examination, this witness stated as under:
"The multiple abrasions were present on the left nostril and on both sides of midline around lower lip also do not rule out forcible closure of the mouth of the victim and resistance in return."
In cross examination, the doctor further stated that it may be a case of throttling of neck and not of mugging. However, he further stated that it may be a case of smothering. The report of Chemical Examiner was placed on record as Ex.PR. No poison was found in the viscera.
Dr.P.K. Nigam was re-examined and he stated that the cause of death may be consumption of some poison, which was not examined by the Chemical Examiner.
ASI Sahi Ram PW-1 stated that on receipt of ruqa Ex.PA, he had recorded the formal FIR Ex.PA/1.
ASI Janak Singh PW-2 proved arrest of the accused Harvinder Singh and stated that during interrogation he had suffered a Criminal Appeal No.583-SB of 2002 7 disclosure statement Ex.PB and in pursuance thereof, this witness got the injections recovered.
HC Surinder Singh PW-3 and Constable Sarwan Kumar PW-4 tendered their affidavits Ex.PC and Ex.PD respectively to prove link evidence.
Constable Manohar Lal, Draftsman PW-7 proved the scaled site plan of the spot as Ex.PH.
SI Darshanpal Singh PW-10 had investigated the case and proved various facets of the investigation.
Thereafter, prosecution closed its evidence and statement of the accused under Section 313 Cr.P.C. was recorded. All incriminating circumstances were put to him but he denied the same and pleaded false implication.
In defence, Subhash Chander Clerk from the office of SDM was examined as DW-1 to say that as per the record of Motor Registering Authority, on 7th February, 2001, a motorcycle was transferred in the name of the accused appellant but he had purchased the same from one Ashok Kumar.
Ashok Kumar DW-2 stated that he had sold his motorcycle in December, 2000 to the appellant.
I have heard counsel for the parties.
Mr.S.S. Dinarpur, Advocate appearing for the appellant, has very vehemently contended that in the present case, prosecution has failed to prove the cause of death. It has been submitted that according to Dr.P.K. Nigam, PW-6 the cause of death was consumption of some poison. It is stated that report of the Chemical Examiner Ex.PR shows that no poison was found in the viscera. Learned counsel has submitted that the explanation of the doctor that the Chemical Examiner had not tested the viscera for some poison, ought to be discarded at the first instance. It Criminal Appeal No.583-SB of 2002 8 is submitted that the injuries on the person of the deceased, noticed in the post-mortem report, are not sufficient to opine that they were responsible for causing death.
This Court, in a judgment rendered in 'Amar Iqbal Singh v. State of Punjab' 2009(5) RCR (Criminal) 364, thoroughly considered various medical treatise relating to asphyxial deaths. The following portion of the judgment rendered in Amar Iqbal Singh's case (supra) is required to be reproduced here to justify the conclusions, which this Court intends to arrive at:
"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.
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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 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 Criminal Appeal No.583-SB of 2002 9 death is very frequently sudden due to cardiac arrest from pressure upon the large vessels in the neck.
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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 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 Criminal Appeal No.583-SB of 2002 10 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."
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Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Sixth Edition has devoted Section 3 (12) to 3(13) to deaths from Asphyxia. Parikh has observed that traditionally, accepted signs of Asphyxia are due to pathological changes resulting from anoxia. The effect of anoxia on tissues is mainly two fold, viz, non-specific and specific. As a result of non-specific effects, body tissues undergo parenchymatous degeneration. As a result of specific effects, systematic changes seen are:
(i) cyanosis;
(ii) increased capillary permeability; and
(iii) petechial haemorrhage.
Parikh has defined cyanosis, increased capillary
permeability and petechial haemorrhage, which are indicators to determine whether death is due to anoxia or venous congestion. Parikh also noticed that in case of hanging, ligature constricts the neuron-vascular bundles in the neck and/or the upper airways. Parikh held that determining factors to find whether one has died due to hanging or strangulation are external appearances, injuries of neck and internal appearances. Following signs have been noticed by Parikh regarding strangulation:
(i) Death instantaneous. No asphyxial signs;
(ii) Slight asphyxial signs: cyanosed face with occasional petechiae, suffused eyes, dilated pupils;
(iii) Moderate asphyxial signs: cyanosed face, bulging eyes, ecchymosed conjunctivae, and few petechiae;Criminal Appeal No.583-SB of 2002 11
(iv) Well marked asphyxial signs: deeply cyanosed face, blood shot eyes, bruised bitten tongue, and many petechiae in eyelids, conjunctivae, and face.
Parikh concluded that ligature mark is one of the indicators and in itself is not sufficient to decipher whether death has taken place due to hanging or strangulation. Parikh held that extensive injuries to the neck are far more common, as the murderer generally implies more force than is necessary to cause death.
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Classical treatise on medical jurisprudence is found in Taylor's Principles and Practice of Medical Jurisprudence, Eleventh Revised Edition, published by J & A Churchill Ltd. Taylor also laid much emphasis on post mortem appearances to determine whether one has died in case of asphyxia due to strangulation or hanging. Broad indicators, according to Taylor, are the general external appearances, the injuries found on dissection of the neck and general internal appearances. Taylor has observed as under on page Nos.494-5:
'Proof of the Cause of Death The general features of asphyxial death found in strangled bodies have been noted above, viz., intense venous congestion in general, capillary stasis, hemorrhages into the substance of the lung and into mucous membranes, punctate petechiae in the skin and conjunctivae, prominence of the eyes, protrusion of the tongue, or its pressure against the teeth, and bloody froth and mucus in the trachea. Circulation ceases with life, so it is utterly impossible that a ligature placed round the neck after death could produce these appearances: the presence of these signs strongly suggests that death was due to asphyxia. Nevertheless they are not in themselves pathognomonic, for, as Gordon and Turner have insisted, they occur in other Criminal Appeal No.583-SB of 2002 12 suboxic deaths. Their local distribution in the head and neck is, however, strongly presumptive of strangling.
Evidence of violent compression or constriction of the neck during life is obtained from the presence of ecchymoses about the marks on the neck, haemorrhages above the level of the constriction, and swelling and lividity of the face. These are phenomena which cannot be simulated in a dead body by the application of any degree of violence. When the constriction is produced within a few minutes after death, a depression results, but it is highly unlikely that there will be any lividity or swelling of the tissues above. The experiments of Casper showed the impossibility of producing on a dead body anything at all resembling an ante-mortem strangulation mark.
In the absence of ecchymoses in the neck, it will be difficult to form an opinion, unless from circumstantial evidence. It must be remembered, however, that there may not always be any well defined marks, for a person may be strangled by the application of pressure to the neck through some soft medium. In the absence of all marks of violence round the neck, we should be cautious in giving an opinion which may affect the life of an accused party, for it is difficult for homicidal strangulation to be accomplished without the production of some appearances of violence on the skin. It is doubtful whether strangulation ever takes place without some marks being found on the neck indicative of the means used, but there is a remote possibility that death could be caused in this manner, without leaving any appreciable trace of violence. Suicides and murderers generally employ much more violence than is necessary for the purpose of taking life. If a soft and elastic band were applied to the neck with gradually increased force, it might be possible that death from strangulation would result without there being any external sign indicating the cause of death'."Criminal Appeal No.583-SB of 2002 13
In the present case, in the post-mortem report, the following pronounced indicators have been mentioned for this Court to apply its mind:
(a) Dark red clots of blood were present in both the nostrils.
(b) There were multiple small abrasions, irregular in shape, present on left side in submandibular region and upper part of the neck, covered with dark red clots of blood.
(c) Membranes of the brain were congested.
(d) Both the pleourae were congested.
(e) Larynx and trachea were congested.
(f) Chambers of heart contained dark red blood.
(g) Peritoneum was congested.
(h) Mouth, pharynx and oesophagus were congested.
(i) There were a number of injuries on the dead body.
(j) There were bruises present on various parts of the
body.
All the above mentioned indicators prove the death by asphyxia. Dr.P.K. Nigam had ignored these parameters. According to Cox, symptoms of asphyxial death are congestion, oedema, cyanosis, petechiae and nose bleeding. The broad indicators, which have been noticed above, show that the death, in the present case, was due to asphyxia.
Be that as it may, the post-mortem report proves that the death of the deceased Jaswinder Kaur was unnatural. There are various factors to give a categoric finding that her death was under the circumstances other than normal. Thus, one of the essential ingredients of offence punishable under Section 304-B IPC stands proved in the present case.
The marriage of Jaswinder Kaur was performed with the present appellant on 22nd October, 2000. She died on 21st May, 2001 in Criminal Appeal No.583-SB of 2002 14 her matrimonial home. Her death was within seven years of marriage. Accordingly, the second ingredient of offence punishable under Section 304-B IPC also stands proved against the appellant.
The testimonies of complainant Amar Singh PW-5, Jaspal Singh PW-8 and Sher Singh PW-9 prove that the deceased was subjected to cruelty and harassment soon before her death on account of demand of dowry. Thus, all the three ingredients of an offence punishable under Section 304-B IPC are proved in the present case against the appellant and he has been rightly convicted by the trial Court for offences under Section 304-B and 498-A IPC.
Having held and affirmed the findings of the trial Court that the appellant is guilty of offence punishable under Section 304-B and 498-A IPC, this Court has to consider as to whether the sentence of nine years rigorous imprisonment awarded to the appellant under Section 304-B IPC is justifiable or not. There are no aggravating circumstances calling for such a higher sentence. Furthermore, occurrence in the present case, had taken place in the year 2001. The appellant has already suffered mental pain and agony of a protracted trial. Therefore, this Court is of the opinion that ends of justice will be fully met in case sentence of nine years awarded to the appellant under Section 304-B IPC is reduced to seven years rigorous imprisonment. However, the sentence awarded under Section 498-A IPC calls for no change.
Accordingly, present appeal is disposed of with the modification in sentence under Section 304-B IPC noticed above.
[KANWALJIT SINGH AHLUWALIA] JUDGE May 5, 2010 rps