Punjab-Haryana High Court
Balkar Singh vs State Of Haryana on 14 July, 1998
Equivalent citations: 1999CRILJ718, II(1999)DMC75
Author: N.C. Khichi
Bench: N.C. Khichi
JUDGMENT N.C. Khichi, J.
1. This is an appeal preferred by the accused-appellant against the judgment dated 4-10-1995 vide which he was convicted under S. 302, IPC and the order of sentence dated 10-10-1995 vide which he was sentenced to undergo life imprisonment, passed by the learned Sessions Judge, Ambala.
2. The present case was registered on 28-3-1994 against the appellant and his two co-accused in the police station, Mulana, on the statement of PW. Hari Chand, under Ss. 302/304-B/34, IPC. All the three accused were tried by the learned Sessions Judge, Ambala and vide his judgment dated 4-10-1995, the learned sessions Judge, Ambala gave the benefit of doubt to the two accused namely Smt. Batheri and Gainda Ram, the parents of the present appellant and they were acquitted. The learned Sessions Judge, also acquitted the present appellant Balkar Singh under S. 304B/34, IPC while giving the benefit of doubt to him.
3. Against the acquittal of the appellant u/S. 304B/34, IPC and of co-accused under all the above mentioned Sections the State or the Complainant has not filed any appeal or revision. Therefore, we need not go in the details of the facts of this case because now the issue for consideration before us is qua the conviction of accused-appellant Balkar Singh under S. 302, IPC.
4. According to the prosecution deceased Mamo Devi was married about 1 1/2 years before the incident with the accused-appellant Balkar Singh. The accused-appellant and his two co-accused used to raise demands of dowry and maltreat her. On 28-3-1994 at about 6 p.m. two motor cyclists came to the village of the complainant and informed him that his daughter had expired. When the complainant and his companions reached the house of the accused they found deceased hanging on a ceiling fan.
5. In the sessions Case, the learned Sessions Judge charge-sheeted the accused-appellant along with his two co-accused under S. 302/34 and u/S. 304B, IPC vide order dated 6-10-1994 that on 28-3-1994 in the area of village Saha, all the accused did commit the murder of Mamo Devi wife of Balkar Singh; by intentionally causing her death, to which they pleaded not guilty and claimed trial and after the conclusion of the trial the co-accused of the appellant were acquitted as stated above.
6. In support of its case the prosecution examined 8 PWs in all and in addition it tendered the affidavit of HC Pal Singh Ex. PJ.
7. PW. 1 Dr. V. K. Jain Medical Officer, General Hospital, Ambala city deposed that on 30-3-1994 at 10 a.m. along with Dr. G. P. Saluja, SMO conducted the post mortem on the dead body of Mamo Devi on Police application Ex. PA. He deposed that the information furnished by the police was that the victim was killed by strangulation and then hanged. There was no wound or bruise all over the body. The body was of a young female, moderately built and nourished, wearing green, printed shirt, salwar, black underwear, four red glass bangles on right wrist and seven on left wrist. Neck was not stretched. In their opinion the cause of death was vegal shock and asphyxia as a result of strangulation which was ante mortem in nature and sufficient to cause death in the normal course of nature. The time elapsed between death and post mortem was within 72 hours and the time between injury and death was from a few seconds to two minutes. The doctor proved on record Ex. PB the copy of the post mortem report.
8. The doctor further deposed that the ligature mark on the body was not the result of ligature material used. The ligature mark which was present on the dead body was not possible with the help of Chunni. During the cross-examination this doctor admitted that there was no other mark of external injury on the person of the deceased except the mark on the neck i.e. the ligature mark.
9. PW. 2 Hari Chand, the author of the FIR and who is the father of the victim refused to support the prosecution case in material particulars and he had to be declared hostile by the prosecution, but nothing beneficial to the prosecution could come out. He however, stated that he married his youngest daughter Mamo Devi, since deceased with appellant Balkar Singh. Three months prior to the occurrence a son was born from that wedlock. All the accused used to quarrel with the deceased. One week prior to the occurrence, his daughter Mamo Devi and her husband i.e. appellant came to his house from village Saha. He further deposed that both of them remained with him for one night. No dispute arose before him at that time and they went away of their own to their village. Thereafter two motor cyclists came to his house from village Saha and informed him that Mamo Devi was lying ill and after a short while they told that she had died. He along with his companion reached the house of the accused but they were not found there. He proved his statement Ex. PF. In his cross-examination by the PP he stated that his daughter had told him that she will not go to the village Saha, as all the three accused used to give beating to her harassed her.
10. In his cross-examination by the ld. defence counsel this witness stated that he has 7 acres of land, His brother had 22-23 acres of land. His daughter had studied up to 6th standard. He further deposed in his cross-examination that his daughter used to say on her visits that he had married her with poor person. His daughter did not write any letter to him from the house of her in-laws.
11. PW. 3 Mange Ram, who is the cousin brother of the deceased and PW. 5 is the brother of deceased. Their evidence is not qua the charge u/S. 302, IPC against the accused.
12. PW. 6 Pala Ram ASI partly investigated the case. He prepared the inquest report Ex. PC. He also got conducted the post mortem examination on the dead body of the deceased. He took into possession two pairs of Chappals Ex. P8 to Ex. P11 and one Mufflar Ex. P12 vide recovery memo Ex. PG. He also took into two sealed parcel of the belonging of the deceased which were taken into police possession vide memo Ex. PK.
13. PW. 8 SI/SHO Mange Ram is another investigation Officer. He recorded the statement Ex. PF of Hari Chand complainant on the basis of which formal FIR Ex. PF/2 was recorded. He also recorded the statements of other PWs u/S. 161, Cr.P.C. and got prepared the photographs of the place of occurrence along with the dead body. He recorded the disclosure statement of Balkar Singh and Batheri accused and accused Balkar Singh in pursuance of his disclosure statement got recovered iron rod Ex. P13. He prepared the sketch of iron rod and took the same in possession vide recovery memo Ex. PN. He also prepared rough site plan of the place of occurrence Ex. PO with correct marginal notes. He also prepared the report u/S. 173, Cr.P.C.
14. In their statements under S. 313, Cr.P.C. all the accused denied the incriminating circumstances appearing against them in the evidence of the prosecution and pleaded their false implication. The accused-appellant Balkar Singh stated that he was living with his wife (since deceased) happily and they were enjoying a happy married life.
15. We have heard the learned counsel for the appellant accused and the learned DAG, Haryana at length and have gone through the material on record before us carefully.
16. Much stress has been given by the learned counsel for the State that the death was due to strangulation and the Doctor who conducted the post mortem on the dead body has also opined that the death was due to strangulation.
He further argued that PW. 1 Dr. V. K. Jain has explained the basis for which he has stated this is a case of strangulation i.e. the ligature mark was horizontal around the neck and it was encircling whole of the neck; in the present case the bone was fractured; no saliva was present on the face of either angles of mouth; the neck was not stretched and there was no sign of discharge of any urine in the cloths of the deceased.
17. But we are not inclined to accepted this contention of the learned counsel for the State. In the inquest report Ex. PC in column No. 12 the cause of death was shown due to hanging while in column No. 8 it is mentioned that the neck was stretched. The duration of death between injury and death was not mentioned by the doctor at the first instance; the doctor for the first time explained the reason for his conclusion about the death of deceased Mamo Devi by strangulation, in the Court. The reasons of his conclusion does not find mention in the post mortem report. The doctor P.W. 1 V. K. Jain has stated that he was informed by the police that a person was killed by strangulation and then hanged. He also stated that there was no wound or bruise all over the body of the deceased. Seven bangles were also found on the wrists of the deceased. If it was a death by strangulation then the deceased must have resisted the action of the accused to some extent. Bangles on the wrist of the deceased were in tact. There was no sign of resistance on the body of the deceased or on the persons of any of the accused. These circumstances bely the contention of the learned counsel for the State. Thus in our opinion it is not safe to rely upon the statement of Dr. V. K. Jain, PW. 1, so far as the cause of death by strangulation is concerned in this case.
18. The learned counsel for the State has placed reliance on Amarjit Singh v. The State of Punjab 1989 (1) RCR 18 : (1989 Cri LJ NOC 13). Ratio of this authority is not applicable to the facts in hand. In that case there was strong motive and semi direct evidence against the accused. In that case the prosecution had also relied upon extra judicial confession of the accused and there were also marks of violence on the dead body of deceased. Therefore, in our opinion, this authority is distinguishable from the present case and is of no help to the prosecution.
19. The learned counsel for the State has also placed reliance upon Udai Pal Singh v. The State of Uttar Pradesh 1971 CAR 427 : (1972 Cri LJ 7). This authority also does not apply to the facts and the circumstances of the present case. In the cited case there were injuries on the dead body of the victim and the prosecution case was also strangthened by letter/complaint written by the deceased to her father.
20. Learned counsel for the State also argued that the accused were not found at their home when the complainant reached their house and this circumstance gives weight to the case of the prosecution that the deceased was murdered. This circumstance does not find mention in the FIR and in the inquest report. Otherwise also a person cannot be convicted and sentenced to life imprisonment on this sole and sandy circumstance.
21. At the outset, the learned counsel for the appellant argued that the learned trial Court has disbelieved the prosecution regarding the charge under S. 304B of the Indian Penal Code against all the accused and qua the charge under Ss. 302/34 of the Indian Penal Code qua accused Gainda Ram and Bhateri and it was not desirable for the learned Trial Court to convict the present appellant under S. 302 of the Indian Penal Code. He further argued that there is no direct evidence to connect the accused with the crime. He further argued that in this case no circumstantial evidence is available to connect the accused with the incident. Even if the medical evidence is believed that the death was by strangulation yet it is not proved that the accused strangulated Mamo Devi. There is no strong motive on the part of the accused for murder. In support of his argument he relied upon Illyas v. State of Haryana 1997 Crl LJ 3834. Wherein it was held as under (at page 3835) :-
"In this regard once the accused have been convicted and sentenced for an offence under Ss. 302/34 IPC the prosecution could not be exempted by the Trial Court to prove the case against the accused on circumstantial evidence that it were the accused and the accused alone who committed the murder of the deceased. No circumstantial evidence like the disclosure statement, recovery of weapon of offence, any dying declaration or extra judicial confession is available on the file on the basis of which the trial Court could come to the conclusion that the crime was committed by the accused. The case falls within the definition of death by strangulation and it is nowhere proved, whether the deceased was strangulated to death by the accused, some body else or she committed suicide."
It was further held that :
"It is well established that in a case based on circumstantial evidence the motive has to play an important role. In the present case no evidence is available on the file against the accused that they have committed the murder of the deceased on some motive. There was no motive on the part of the accused to commit the murder of the deceased who was being well maintained by them in their house and was living a normal house hold life with her husband accused Aashu. It has been held by the Apex Court in 1994 (3) RCR 606 that the medical evidence is inconclusive and it is highly unsafe to sustain the conviction on the basis of circumstantial evidence of this nature."
This authority is fully applicable to the facts and circumstances of the present case. When the prosecution relied on the circumstantial evidence only the strong motive has to be proved. In the present case the prosecution has miserably failed to prove the motive on the part of accused to commit the murder of the deceased. The deceased was being well maintained by the accused at her matrimonial home. There is no complaint or letter written by her to her father or any relation about the misconduct, if any on the part of the accused. We find force in the argument of the learned defence counsel. There is no dying declaration nor any extra-judicial confession on the file to connect appellant with the crime. In this case medical evidence is an opinion evidence. There is nothing on record in the shape of direct evidence that the appellant had murdered the deceased. There is no strong motive and circumstance. The prosecution case had been disbelieved on material particulars qua all the accused and also under S. 304B qua the present appellant. In this view of the matter we are of the opinion that the learned trial Court was not justified in convicting the accused-appellant under S. 302 IPC which certainly needs interference by us.
22. The learned defence counsel has also argued that there is no satisfactory evidence to show that the accused had taken part in killing Mamo Devi by strangulation and even strong suspicion cannot take place of proof. In support of this argument the learned defence counsel placed reliance on Mulak Raj v. The State of Haryana, 1996 Crl LJ 1358 : (AIR 1996 SC 2868).
23. The complainant, who is the father of the victim was declared hostile by the prosecution. There is no motive for committing the offence by the accused. The relations between the accused and the deceased were not bitter. There is another circumstance, that PW Hari Chand has admitted in his cross-examination that her (his) daughter had told him that she had been married by him in a poor family. It has come in the evidence that the family of the in-laws of the deceased had 7 acres of land besides other business meaning thereby that he was in a sound position and in this way to some extent the deceased was not happy at her own and not because of any mischief from the side of the accused. Thus in our opinion the possibility of deceased Mamo Devi having committed suicide cannot be ruled out.
24. PW. 2 Hari Chand has also admitted in this statement that two boys had informed him in his house in his village about the incident. This shows that the appellant and his family members had sent the information to the complainant before the arrival of the police and this circumstance also shows that there was no evil in the souls of the accused.
25. The learned counsel for the State at this stage argued that if this Court reaches to the conclusion that no offence under Ss. 302/34, IPC is made out then the appellant Balkar Singh can be convicted under S. 306 IPC, as envisages under S. 222, Cr.P.C. which entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried.
26. In view of the facts and circumstances of the case in hand we do not agree with the learned counsel for the State. The prosecution had not been able to connect the accused with the crime. When the prosecution has no legs to stand there is no question of conviction of the accused in either offence. The evidence regarding the essential ingredient of abetment against the accused is not on the record.
27. For the foregoing reasons and above discussion we are of the considered opinion that the prosecution has not been able to prove the guilt of the accused under S. 302, IPC. The Ld. Sessions Judge has rendered moral conviction of the accused. In view of this, the appeal filed by the appellant Balkar Singh has merit. The same is hereby accepted and the judgment of conviction and the order of sentence passed by the learned Sessions Judge vide his orders dated 4-10-1995 and 10-10-1995 are set aside. The accused-appellant Balkar Singh be set at liberty forthwith if he is not required in any other case.
28. Appeal allowed.