Punjab-Haryana High Court
Cra No.D-758-Db Of 2008 vs Ganesh Tiwari And Another on 7 May, 2013
Author: Amol Rattan Singh
Bench: Satish Kumar Mittal, Amol Rattan Singh
CRA No.D-758-DB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. CRA No.D-758-DB of 2008
Date of Decision : 07.05.2013
State of Haryana ...... Appellant
Versus
Ganesh Tiwari and another ...... Respondents
2. CRA No.S-1826-SB of 2008
Ganesh Tiwari and another ...... Appellants
Versus
State of Haryana ...... Respondent
****
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE AMOL RATTAN SINGH Present : Mr. Paramjit Batta, Addl. A.G. Haryana for the appellant (in CRA No.D-758-DB of 2008) and for the respondents (in CRA No.S-1826-SB of 2008) Mr. Bijender Dhankar, Advocate for the appellants (in CRA No.S-1826-SB of 2008) and for the respondents (in CRA No.D-758-DB of 2008) **** AMOL RATTAN SINGH, J
1. These are two appeals; one, i.e. CRA No.758-DB, of 2008, has been filed by the State on the ground that the conviction of the respondents (appellants in CRA-S-1826-SB of 2008) should have been under Section 302, read with Section 34 IPC and, accordingly, the punishment should also be enhanced. The second one, (CRA No.S-1826-SB of 2008), has been CRA No.D-758-DB of 2008 2 filed by both the accused against their conviction under Section 304-B read with Section 34 IPC, as a result of which they have been sentenced to undergo rigorous imprisonment for 10 years each ,by the learned Additional Sessions Judge, Faridabad, on 30.07.2008.
In the appeal filed by the State, it has been stated that it has been medico-legally established that the deceased had died of asphyxia due to strangulation and, as such, the case does not fall under Section 304-B read with Section 34 IPC, but under Section 302 read with Section 34 IPC.
2. The facts of this case, eventually giving rise to these appeals are hereinafter described.
On 03.12.2006, a police party, headed by Sub-Inspector Suresh Kumar, who, as per record, was present in B.K. Hospital on duty, was told by one Head Constable Badan Singh of Police Post Parvatiya Colony, Faridabad, that on the preceding night, on receipt of information from Control Room, Faridabad, proceedings under Section 174 Cr.P.C. were conducted and post mortem was conducted by the medical board, on the dead body of deceased Mamta, upon suspicion by her brother, Ramesh Singh, as to the cause of her death. The Head Constable handed over the post mortem report to the Sub-Inspector (I.O.), in which the doctor had reported that, in his opinion, death was due to asphyxia caused by strangulation. Thereafter, the statement of Ramesh Singh, s/o Ganesh Singh, permanent resident of Bihar and otherwise resident of House No.C- 364-A, Chirag Delhi, was recorded, in the presence of the Sub-Inspector at 6.15 p.m. on 03.12.2006. Thereafter, the FIR was registered at Police Station, Saran, Distt. Faridabad, at 6.40 p.m. The statement reads as under:- CRA No.D-758-DB of 2008 3
"Stated that I am resident of above said address and used to do work of air conditioner repair. We are three brothers and sister. We solemnized marriage of our younger sister Mamta on 30.01.2005 according to Hindu rites with Ganesh Tiwari s/o Sindeshwar Tiwari, r/o Gurmiya, P.S. Hussaina Raghav, Distt. Vaishali, Bihar. This marriage was solemnized by us in our native village Bihar. In the marriage, one bed, one iron almirah, one gold ear ring (gent), one gold ear ring (ladies), one gold chain, one gold Munri, gold ear topes were given. My sister had remaining going and coming to her in- laws. Now some days prior to Diwali, Mamta along with her brother- in-law Ramesh Tiwari had come to Parvatiya Colony, Faridabad. After the marriage, husband, mother-in-law and brother-in-law of Mamta had demanded money for constructing a house in the village. We had given them Rs.30,000/- cash. Thereafter, in-laws of Mamta started harassing her for further money on which we deposited Rs.25,000/- in fixed deposit in the name of Mamta and handed over receipt to Mamta. Thereafter, in-laws of Mamta were harassing her for more money on which we again gave them Rs.30,000/- cash for constructing house in Parvatiya Colony. After coming to Faridabad, in-laws of Mamta were harassing her. When on the occasion of Diwali, (I) had visited the house of Mamta at Parvatiya Colony, then my sister told me that her husband, mother-in-law and brother-in-law Ramesh Tiwari are harassing and torturing her by saying that the house has become old and for its repairing you have to bring money from her father. On which I had returned after making them understand. We have no further money to pay them. On the night of 2.12.2006 on receipt of information regarding death of Mamta, I along with my brother Mukesh Kumar and uncle Vinay Kumar Singh came to Faridabad. When we got suspicion about the death of Mamta, we got her post mortem conducted. Now we had satisfied ourselves that Mamta has been strangulated by pressing her neck by her husband Ganesh Tiwari, mother-in-law Shakuntala Devi and brother-in-law Ramesh Tiwari for dowry. Legal action may be taken against them. Statement has been got recorded, heard and which is correct."CRA No.D-758-DB of 2008 4
(Grammatical and other small mistakes have crept in, in the translated version reproduced in the record).
3. However, prior to that, as per record, on 03.12.2006 (possibly in the early hours after 12 mid night), accused Ganesh Tiwari s/o Sindeshwar Tiwari, permanent resident of Village Gurmiya, P.S. Hussaina Raghav, District Vaishali, Bihar and at the time of incident residing at Parvatiya Colony, near Police Station Saran, District Faridabad, aged about 28 years, had stated before the police (aforementioned Head Constable Badan Singh of Police Post Parvatiya Colony Faridabad), that after constructing his own house, he along with his family had been residing at Parvatiya Colony for the last 1 ½ years; he was an operator of a Lathe Machine in Kalka Engineering Company, Sector 24, Faridabad; his marriage was solemnized with Mamta Devi d/o Ganesh Singh, r/o Husaina Raghav, Police Station Vaishali, District Vaishali, Bihar; and that he had no children. He further stated that at 8.30 am of that day he had gone for his duty at Sector 24, Faridabad, and had come back in the evening at about 5.30 p.m. Thereafter, keeping his cycle at home, he went to the sabzi mandi to purchase vegetables, after which he went to one Dr. Parveen Kumar for taking medicine, due to a pain in his neck. Thereafter, at about 6.30 p.m., his neighbour, Ashish, reached Dr. Parveen Kumar's place and informed the doctor that his (Ganesh Tiwari's) wife had fallen from the roof and that the doctor should come and check her there. The accused further stated in his statement that, on hearing this, he went home and saw that his wife was lying down on the ground. Dr. Parveen Kumar also reached his house immediately after him and, upon checking his wife, informed that she had CRA No.D-758-DB of 2008 5 died. Upon inquiring from his mother, Shakuntala, he was told that Mamta had gone to the roof for picking up the clothes and while coming down with the clothes, she had slipped from the stairs. He called his neighbours, Olihan and Nisha, and with their help had laid Mamta in the room. Thereafter, he stated that he had rung up his maternal uncle, Om Parkash Tiwari, at his native village Gurmiya and told him about the happening. He told his uncle to inform Mamta's parents etc. of the same. He stated that thereafter he received information from his in-laws that the body of Mamta be kept as it was till they reached there. On receiving information about the happening, his brothers-in-law (wife's brothers) Ramesh Singh, Mukesh Kumar and maternal father-in-law, Vinay Kumar Singh, had reached his place, from Delhi.
4. Strangely, no time has been recorded by the police (H.C. Badan Singh at Police Post Parvatiya Colony), on this statement. Though, in the report made thereafter, (in Hindi), by him (PW4 HC Badan Singh), the time recorded is 3.15 p.m. on 03.12.2006, i.e. about 3 hours before the registration of the FIR.
5. Now, reverting back to the next day's proceedings; as per the post mortem report, recorded at 1.30 p.m. on 03.12.2006, the following injuries were found on the body of the deceased Mamta:-
1. Lacerated wound 2 x 1 inch, bone deep on parieto temporal region.
2. Reddish contusion on left frontal region.
3. Reddish contusion on root of nose.
4. Multiple bruises were present over chest and back.
In addition to these injuries, there was a ligature mark around the neck, 2 cm broad, horizontally placed in the thyroid region CRA No.D-758-DB of 2008 6 throughout the length of neck, reddish brown in colour. On dissection, sub cutaneous ecchymosh was present and underlying large vessels were lacerated. Thyroid cartilage was fractured. Muscles were contused and lacerated, blood was coming out of both nostrils. The internal organs were congested and right chamber of the heart was containing blood. The cause of death in the opinion of the Board was asphyxia due to strangulation, which was ante mortem and sufficient to cause death. The probable duration between death and post mortem examination was within 24 hours.
6. The inquest report, dated 03.12.2006, showed a gloomy countenance. External injuries recorded in this report were, a bluish mark on neck and throat, and she was shown to be a healthy lady and the apparent cause of death was given as "fallen from stairs".
7. Photographs of the body of the deceased as well as of the place of occurrence were taken by the police. These photographs depict a bamboo (straight step) ladder against the wall inside the house, at the right of which there is a 'chulha' with covered utensils on it, along with some slippers, a plastic cane and gunny bags, along with a piece of cloth and miscellaneous items.
Photographs of the marriage ceremony between the accused- appellant No.1 and the deceased were also later given to the police by the complainant.
8. On 04.12.2006, appellant No.1 is said to have suffered a disclosure statement and got recovered a pink coloured chunni (dupatta), stained with blood, from the house of Sindeshwar Tiwari (father of appellant No.1 and husband of appellant No.2). One white colour plastic gunny bag, stained with blood, is also stated to have been recovered during CRA No.D-758-DB of 2008 7 investigation, by the Investigating Officer in the presence of the complainant and Head Constable Badan Singh, on 03.12.2006.
9. The disclosure statement suffered by the accused-appellant No.1, in the presence of the complainant and Head Constable Badan Singh, was to the effect that, according to him, his wife Mamta had brought minimum dowry in marriage and they were demanding more dowry, which demand was not accepted; hence they were annoyed with Mamta. Mamta came to Faridabad from her parental house before Diwali and, on 02.12.2006, he, his brother and his mother Shakuntala were present at home at about 6 o'clock in the evening. His wife was coming down from the roof by the wooden ladder, when his mother pushed her and she fell down and they planned to kill Mamta. As per this statement, his mother, i.e. appellant No.2, Shakuntala, held Mamta's leg, his brother Ramesh Tiwari held her hands and he appellant No.1, Ganesh Tiwari, strangulated her throat with a chunni due to which she died in a short while. During this incident, the nose of the deceased also got injured. He further disclosed that the chunni with which he had strangulated her throat was hidden/imbedded by him ("daba diya") in the 'crasher'. He further stated that thereafter he and his brother went away from their home. He further stated that he could get the chunni recovered.
10. Similarly, a disclosure statement is stated to have been suffered by the second accused in the FIR, i.e. Ramesh Tiwari, brother of appellant No.1, (later declared to be juvenile), also on 04.12.2006, giving the same material particulars as in the disclosure statement of appellant No.1, Ganesh Tiwari. He also stated that he had brought Mamta from her parental home CRA No.D-758-DB of 2008 8 to Faridabad, before Diwali.
In the disclosure statement said to have been suffered by appellant No.2, i.e. Shakuntala Devi, mother-in-law of the deceased and mother of appellant No.1, materially the same facts were disclosed except that she further said that deceased Mamta was not intelligent (words used by her were "Motey Dimag Ki Thi"). She further stated that the ring and ear tops, brought by Mamta in her dowry, had been kept by her in a purse in her house and she could get these items recovered. She further stated that the "chunni" which was used to strangulate Mamta, had been kept somewhere by Ganesh Tiwari-appellant No.1.
11. Thus, the disclosure statements suffered by the three accused, against whom the FIR was registered, were identical in respect of the manner in which the deceased had died.
12. Thereafter, appellant No.2, Shakuntala Devi, is stated to have got recovered a blue plastic bag on which the words 'Vaishali Jewellery Bhandar' were printed, from a suitcase in her house, from which she produced the said gold ring and gold tops. These items are stated to have been identified by the complainant, i.e. Ramesh Kumar Singh, brother of the deceased, as those that were given to his sister, Mamta, in dowry. On 24.12.2006, the complainant, Ramesh Kumar Singh, is stated to have produced photostat copies of one Kisan Vikas Patra, amounting to Rs.5,000/- and two Kisan Vikas Patras amounting to Rs.10,000/- each, totaling Rs.25,000/-, in the name of Mamta, all of which are dated 16.08.2005 and were exhibited as Ex.P-13 to 15.
CRA No.D-758-DB of 2008 9
13. After investigation was complete, the challan was forwarded and the case was committed to the Court of Sessions by the JMIC, Faridabad, on 12.01.2006.
14. It is essential to note here, that statements were recorded by the police in the course of investigation, invoking Section 175 Cr.P.C., after first having recorded them under Section 161 thereof. Obviously, they (police) raised a presumption of suicide, after the brother of the deceased (later PW5), expressed suspicion on the cause of death, when his statement under Section 161 Cr.P.C., was recorded.
15. On 07.02.2007, the learned Additional Sessions Judge, Faridabad, charged the three accused, i.e. the present two appellants as also Ramesh, brother of appellant No.1 and son of appellant No.2, of committing an offence under Section 304-B read with Section 34 IPC, for having subjected the deceased Mamta to cruelty and harassment leading to her death within seven years of marriage, other than in normal circumstances. An alternative charge under Section 302 read with 34 IPC had also been framed against all three accused. They all pleaded not guilty to both the charges and claimed trial.
16. Before the trial court, an application had been moved that the 3rd accused, Ramesh, is a juvenile and evidence was led on the point of his age. The matriculation certificate of Ramesh was produced in Court on 13.07.2007, after which the learned trial court heard the parties on the point of juvenility of Ramesh Kumar and finally held him to be juvenile and transferred the case, qua him, to the competent court.
17. During the course of trial, the prosecution examined 11 witnesses, whereas the defence examined 2 witnesses. One witness, i.e. CRA No.D-758-DB of 2008 10 Sindeshwar Tiwari s/o Jai Mangal Tiwari, aged about 50 years, resident of Parvatiya Colony, Faridabad, father of appellant No.1 and husband of appellant No.2, was also examined on the point of age of accused, Ramesh.
18. Of all the witnesses, the testimony of the material witnesses, as per the trial court record, is being discussed hereinunder:-
PW2, Constable Manoj Kumar, Draftsman, office of Additional Commissioner, Gurgaon, though only a formal witness otherwise, is being discussed in view of the fact that he prepared the site plan in which the presence of any staircase is not given. After his examination-in-chief, in cross-examination he stated that the house consists of one room, one varendah, a kitchen and, a toilet. The whole house comprised an area of 50 sq. yards. The absence of the stair case from the site plan seems to be because it was a bamboo step-ladder and not a concrete part of the house.
PW4, Head Constable Badan Singh, is a material witness, being the first who had received the wireless message about the death of the deceased and who visited the spot, along with two other Head Constables and a Constable, on 03.12.2006 and recorded the statement of appellant No.1 and also prepared the inquest report and signed on it.
19. He deposed about the receipt of wireless message, his visit to the spot, recording of statement and preparation of inquest report. He also deposed with regard to the subsequent disclosure statement suffered by all three accused on 04.12.2006, before the Investigating Officer, Sub-Inspector Suresh Kumar, in his (Badan Singh's) presence and in the presence of the complainant, Ramesh Kumar Singh. He further deposed about the recovery of a plastic bag with blood stains, on 03.12.2006, by the CRA No.D-758-DB of 2008 11 Investigating Officer in his and the complainant's presence. Similarly, he deposed with regard to the recovery of the chunni and the ornaments in the presence of the same persons. He also deposed with regard to recovery of photo copies of the Kisan Vikas Patras in the name of the deceased and identified the accused person in Court. The rest of the testimony is with regard to preparation of investigation report under Section 173 Cr.P.C. by the Inspector, whose signatures he testified to. He also identified the blood stained plastic bag and chunni in Court, as the same as were recovered in his presence.
20. In cross examination, he stated that he had received the information of the occurrence at 1.30 a.m. in the night of 03.12.2006 and that he reached the place within 15 minutes. He specifically stated in his cross examination that the dead body bore an injury on the neck. He further stated that the complainant party, the accused, and some neighbours, were present at the spot. He stated that "Sanjay" Tiwari, father of accused Ganesh Tiwari, was not present at the place when they reached there. He is stated to have spent 5 hours at the spot. He admitted that the kind of chunni and plastic bag recovered, were easily available in the market. He also admitted that he had not obtained the signatures of any neighbour on the recovery memo and that he did not remember on which date or in which post office or bank the Kisan Vikas Patras were prepared. He described the house as having been constructed about 2-2 ½ years ago.
21. The complainant, Ramesh Kumar Singh, brother of the deceased, appeared as PW5 and stated that his sister, Mamta, was married on 30.01.2005 to the accused Ganesh Tiwari. He also stated that his sister CRA No.D-758-DB of 2008 12 had told him that all the three accused were demanding cash and subjecting her to harassment and cruelty. He further stated that he had given them (accused persons) Rs.30,000/- and thereafter he had also made three fixed deposits of Rs.25,000/- in favour of his sister Mamta and also gave another Rs.30,000/- on the demand of the accused, when they were constructing their house.
He further deposed that on 02.12.2006 he received information with regard to the murder of his sister in the house of her in-laws, after which he, along with his brother, Mukesh, and uncle, Vinay, reached Parvatiya Colony, Faridabad. He deposed with regard to the conducting of the post mortem and his statement to the police (Ex.P-19 bearing his signatures) and also with regard to identification of the dead body of his sister Mamta, during inquest proceedings. (The Hindi version does not use the word 'murder', but 'kaleh' or 'kalesh', meaning 'quarrel' etc.) He further corroborated the disclosure statements suffered by the accused on 04.12.2006 and recovery of the items already referred to above earlier, i.e. chunni, gold ring and tops. After identifying the two accused (appellants No.1 and 2) in the trial court, he stated that his sister had been murdered by strangulation of her neck and that the accused had admitted their guilt during police interrogation.
In cross-examination, he stated that he was living in Delhi since the year 2000 without his family and was earning about Rs.5,000/- a month, of which he sent Rs.2,500/- per month to his village. He further deposed in cross examination that he had come to know at the time of marriage of his sister that the accused had lived at Faridabad, but that appellant No.2 started living with the accused only later and not at the time of marriage. CRA No.D-758-DB of 2008 13
Testifying with regard to the demand of dowry, he had stated that he was present at the time of the marriage of his sister and at that time appellant No.1 had demanded cash from his father and him and that he had stated this fact to the police while recording his statement (though he was confronted with the fact that it was not so recorded). He further stated that his father had given cash to his sister, but he had not. A question was also put to him as to when his sister came to Delhi from her maternal home, on which he had stated that she remained home for 8-9 months and during that period the accused persons had demanded dowry. Though he had stated that he had disclosed this fact to the police when his statement Ex.P-19 was recorded, the statement, however, did not contain such averment. He denied knowledge of the date of demand of dowry and how much they demanded in dowry; and from which bank the fixed deposit receipts were got prepared, as the same had been got prepared by his uncle. He also informed that the information about the death of his sister was received at 9.00 p.m. on 02.12.2006 through the telephone call of his uncle who had, in turn, received a telephone call from Bihar. He had stated that he reached Parvatiya Colony, Faridabad at 12.00 o'clock at night along with his uncle, Vinay and brother Mukesh. He saw the dead body of his sister lying in the room but he did not notice any injury. However, a scar mark on her neck was noticed by him. He stated that he informed the police at about 12.30 a.m. through telephone and that his statement was recorded at B.K. Hospital, Faridabad, where he was present for the post mortem. He further stated that Ganesh Tiwari (appellant No.1) and his father were also present CRA No.D-758-DB of 2008 14 at the time of post mortem. He denied the suggestion that his sister had died after slipping from the stairs.
22. The next material witness is PW6, Vinay Kumar s/o Ramphal Singh, aged 43 years, who is the uncle of the deceased and is also stated to have been present at the spot, after the occurrence, along with PW5. In all material particulars, he reiterated the testimony of PW5 and stated that they (complainant party) were convinced that the accused had committed the murder of Mamta for the demand of dowry. He identified appellant Nos.1 and 2 in the Court and stated that accused Ramesh was facing trial before the juvenile court.
In cross-examination he stated that he was living at Noida since 2001 with his family and that he was not present at the time of fixation of the marriage, but was present at the time of marriage, though he did not know whether they had demanded any other articles. He stated that the FDRs were made in the post office and not in the bank, from his own account, in the name of Mamta on 16.08.2005. He had also stated that Mamta resided at her parental home in Bihar, for a period of about "a quarter to three" years after marriage.
He further stated that on 03.12.2006 he reached Faridabad at about 12.45 A.M. and the accused persons were sleeping and that no person was gathered when he reached the house of the accused. He further stated that accused Ganesh, Shakuntala as also Sindheshwar, were present there and that he had gone to the police station to report the matter. He also stated that when he reached there he found the dead body lying in the room. He CRA No.D-758-DB of 2008 15 noticed injuries on the leg of the dead body and also on the neck and that blood was profusely oozing out.
23. PW9 Sub-Inspector Rajinder Singh, Incharge of police post, Parvatiya Colony on 09.12.2006, deposed with regard to production of three copies of FDRs (Kisan Vikas Patras) in the name of Mamta by the complainant and with regard to preparation of the report under Section 173 Cr.P.C. However, in cross-examination he denied knowledge of the date of the Kisan Vikas Patras or the amount or from where those were prepared.
24.. Inspector Suresh Kumar (who was Sub-Inspector on the date of occurrence and posted at Faridabad), deposed as PW11 with regard to his investigation, upon receiving the post mortem report at B.K. Hospital, including recovery of the plastic bag on 03.12.2006. He arrested all the three accused on the same date and recovered the chunni at the instance of appellant No.1. He also deposed with regard to the site plan, as also with regard to recording of the statement of PWs, in addition to identifying the signatures of Inspector Baldev Singh on the report under Section 173 Cr.P.C. In cross examination, he stated that he reached the spot at 7.00 p.m. on the same day, accompanied by Head Constable Badan Singh and the complainant. He testified that though other persons were present, but he did not know their names, nor did they join investigation. He did not know the 'gali' number of the house of the accused; he further said that it was disclosed by some persons that the deceased had fallen from the stairs and the accused persons had strangulated her. Thereafter, he deposed that he was present at the spot at 04.00 a.m. on the same date, but he did not give any description of the FDRs during investigation, as these were not CRA No.D-758-DB of 2008 16 recovered by him. He stated that no case history was disclosed to the doctor at the time of post mortem; and that the cause of death was not clear at that point of time. He admitted that the kind of gunny bag and chunni which were recovered, were available anywhere in the market and that no public man was joined during such recovery or at the time of disclosure statement. He denied that Mamta had died due to a fall from the stairs.
25. In his statement under Section 313 Cr.P.C., appellant No.1 denied every question asked to him and at the end he simply stated that he was innocent and has been falsely implicated. Identically, appellant No.2 also denied everything and simply stated that she had been falsely implicated. The accused were also asked to make statements under Section 313 Cr.P.C. again, with regard to the report of the forensic science laboratory, to the effect that there was human blood on the plastic bag as well as on the chunni which they had got recovered. They again denied the same.
26. The prosecution gave up Mukesh, brother of the complainant, and Inspector Baldev Singh who had prepared the challan and ASI Ishwar Singh, as unnecessary witnesses.
27. The defence produced Nisha Devi w/o Vinod Kumar Singh, aged about 30 years, r/o House No.91, Parvatia Colony, Faridabad as DW1, who had stated that her house was adjacent to the house of the accused and that she had known the wife of the accused, Mamta, who had started living at Faridabad about two months prior to her death. She further deposed that she had never heard about any demand of dowry from Mamta. She stated that though Mamta had always talked to her but she never complained about CRA No.D-758-DB of 2008 17 any demand of dowry. She further deposed that the accused never beat Mamta at any point of time on account of demand of dowry. She also stated that the brother of the deceased, i.e. Ramesh, also used to meet her, but he also did not give any complaint to her about the demand of dowry or maltreatment of Mamta by the accused.
She had stated that she was present on 02.12.2006 on the roof of her (Mamta's) house and the deceased Mamta was also on the roof of her house and that they were talking to each other at that time. She had further stated that Mamta started going down by the wooden (Baans) stairs with a bundle of clothes and she fell down. She had further stated that she made a noise at that time and only Shakuntala Devi, mother-in-law of the deceased, was present at home. She stated that Mamta had fallen down and her sari was hanging from the wooden stairs. Shakuntala was crying because of Mamta's fall. Another neighbour, Sanjay Jha and she had released the Sari of deceased from the stairs and thereafter Sanjay went to call the doctor and the doctor had arrived at the spot after half an hour and stated that Mamta had died. She stated that Ramesh, brother of the deceased, along with his uncle, came to the house of the accused at about 12 at night. The brother of the accused (also named Ramesh) came to the house. The police came at about 12.30 a.m. or 1.00 a.m. at night on the spot. She and others neighbours had not slept that night. At about 5.30 in the morning, on 03.12.2006, the police had taken the dead body to B.K. Hospital.
In her cross-examination by the public prosecutor, she had stated that the brother of the deceased (Ramesh-complainant) had visited Mamta 2 to 4 times in the past 2-3 months. He used to stay in the night and CRA No.D-758-DB of 2008 18 go early in the morning. He used to come at about 4 to 6 P.M. and used to go at about 5 to 6 A.M. in the morning. She stated that he met her on every occasion and that he came to her house and talked to her. She had further stated that he used to come alone and that the said Ramesh Kumar also met her husband. She further stated in cross-examination that Ramesh also used to stay in her house for a period of about 35-45 minutes and that he was not known to her (earlier). She further stated that she was a Bhumihar Brahman and that the accused were also Bhumihar Brahmans. She further stated that her village and the village of the accused persons are adjacent to each other at a distance of about 1 km. She stated that the police had inquired from her with regard to the cause of death of Mamta. Although, it had come to her notice that police had arrested the accused, however, they did not lodge any protest or complaint with regard to the same. She, obviously, denied the suggestion that she was deposing falsely in favour of the accused being a co-villager and of the same caste. She also denied that the accused had caused the death of Mamta on account of demand of dowry or due to any harassment.
28. The defence further produced Sanjay Jha s/o Shiv Shanker Jha, aged about 27 years, r/o H.No.93, Parvatiya Colony, Faridabad, as DW2. He stated that the house of accused Ganesh Tiwari is two houses away from his (DWs') house. He had stated (as per the English translation of his testimony) that he knew deceased Mamta before Faridabad, whose death occurred 2-3 years prior (the testimony of this DW was recorded on 23.07.2008). [Note: There is a discrepancy in the testimony recorded in Hindi and the English translation in these two lines. The English version CRA No.D-758-DB of 2008 19 simply states that deceased Mamta had come to Faridabad 2-3 months prior to her death but says nothing about him knowing her "prior to Faridabad".] He further deposed that he was residing with his family, including his wife, two children and his mother. His family and the family of the accused used to visit each other, but Mamta never disclosed about any harassment and dowry. He had also met the complainant, Ramesh, once, and they had a meal together over a period of 3 hours. He further stated that on 02.12.2006, the occurrence took place at 6.00 p.m. and that Shakuntala (appellant No.2) and Nisha were shouting that Mamta had fallen down from the stairs. As per his deposition, Shakuntala was alone at home and the accused's father, Sindeshwar Tiwari, was not present as he had gone for his duty. He reiterated that Mamta had fallen from the wooden stairs and that her Sari was hanging from the stairs. As per him, some clothes were lying on the floor. Though the English translation states that he, Nisha and Shakuntala released the Sari from the wooden stairs and neck, there is no such sentence in the Hindi version recorded in the trial court. Therefore; his testimony actually having been made in Hindi, the English translation has to be rejected. Thereafter, he went to call the doctor and he came back along with the doctor, after half an hour. The doctor had then declared her dead.
He further stated that many persons had gathered at the spot and that he remained there till 12.30 at night and the brother of the deceased, Ramesh, came there at about 12 o'clock at night and the police also came at about 12.30, on a telephone call made by Ramesh. The brother of the accused (also named Ramesh) called him and also called CRA No.D-758-DB of 2008 20 Ganesh Tiwari and his brother [Obviously, the testimony recorded in hindi has not been accurately recorded because it actually makes no cogent sense in the last few lines; in the english translation the version given is that this witness called Ramesh, the brother of the accused, and then Ramesh called Ganesh Tiwari and his father.] He further stated that on 03.12.2006, at about 5.00 a.m., the police took the dead body of Mamta to B.K. Hospital, Faridabad, along with the accused.
In cross-examination by the learned public prosecutor, he stated that he is a Jha Pandit of Bihar and that the accused persons belong to District Vaishali, whereas he belongs to District Darbanga. He further stated that he had lived in his house for a period of four years. He also disclosed that he was a labourer in a private workshop and on the day of occurrence his duty time was 8.00 A.M. to 4.00 P.M. but he was on leave on that day. He again reiterated that he knew the accused for the last 4 years and that the brother of the deceased used to visit his house. He denied going into the house of accused when the police came. He did not make any statement to the police.
Like DW1, Nisha, he also stated that when the accused were arrested he did not protest or lodge any complaint to police or any authority. He denied that he deposed falsely on account of being a neighbour at Faridabad and being co-habitants of the same village and original residents of the same State as the accused.
29. Arguing the appeal of the accused, Sh. Bijender Dhankar, learned counsel, has basically raised 4 points:-
(i) That no demand of dowry was proved.CRA No.D-758-DB of 2008 21
(ii) That in any case there was no proof of demand of dowry immediately prior to the occurrence.
(iii) The fixed deposit receipts (Kisan Vikas Patras), which were relied upon to state that dowry had actually been given, were not in the possession of the accused, but were with the complainant and, in any case, the Kisan Vikas Patras were in the name of the deceased and not the accused.
(iv) That appellant No.1, in any case, was not at home when the occurrence took place and, as such, he has only been shown to be present, to make out a case against both the appellants.
30. As such, he contended that there was absolutely no motive for the accused to have strangulated the deceased to death and, as a matter of fact, she had died as a result of a fall from the stairs with a ligature mark on her neck on account of the Sari having got stuck in the bamboo stairs and having strangulated her neck. He, therefore, contends that the learned trial court had completely erred in appreciating the evidence, in holding that the deceased was strangulated by the accused and had further misdirected itself in holding that it is a dowry death on the basis of the statements of the PWs as also because of purchase of Kisan Vikas Patras in the name of the deceased after seven months of marriage. Therefore, even an offence under Section 304-B IPC, holding it to be a dowry death, was not made out and in any case there was no evidence, whatsoever, to convict the accused under Section 302 IPC.
CRA No.D-758-DB of 2008 22
31. Learned counsel has further stated that the blood stained chunni and the blood stained plastic bag, allegedly recovered from the spot, have been planted there to buttress the case of the prosecution and there was no occasion for strangulation with chunni (duppata) in any case, when the deceased was admittedly wearing a Sari at the time of occurrence.
32. The prosecution, on the other hand, in the appeal for conviction under Section 302 IPC and enhancement of sentence, has argued the following points:-
(i) That both the appellants who were admittedly present, i.e. son and mother, did not take the deceased to the doctor immediately upon her having fallen down and the same would hold good with regard to accused juvenile, Ramesh.
(ii) As regards motive, it has been argued that there is no contradiction with regard to this in the statement of all the witnesses produced by the prosecution, and the existence of Kisan Vikas Patras had also been proved, which were purchased within 7 years of marriage and given to the accused, even though those were in the name of the deceased.
(iii) That the conduct of the accused also points to their complicity in having committed the crime, inasmuch as, that appellant No.1 (Ganesh Tiwari) himself stated in his statement before the police, at a time when he was not an accused, but had recorded it in the form of a report with regard to the mishappening that took place (and before the complainant had CRA No.D-758-DB of 2008 23 lodged the FIR), that he (Ganesh Tiwari) had called his uncle in Bihar to inform the parents of the deceased about her death.
As per Shri Paramjit Batta, the learned counsel for the State, this was a most unnatural reaction by her husband, who was fully aware that the brother of the deceased lived in Delhi and should have first informed him, even if he did not ring up her parents in Bihar. Thus, his guilty state of mind as well as motive to buy more time to cook up a story and regain composure, in order to make a fool proof defence, was the reason for his not informing the brother of the deceased, with whom he was otherwise in contact, on account of his (complainant Ramesh's) having visited his sister and her family off and on from Delhi, after she came from Bihar.
(iv) Learned Additional Advocate General further argued that the cause of death could not be due to a fall from the bamboo stairs because, though there was an injury on the head of the deceased; but, in fact, there was a deep strangulation mark on the neck (in addition to other minor injuries) and, medical evidence had proved her death to have been caused by asphyxia.
(v) His next contention is that the doubt about the blood stained chunni (duppata), used to strangulate the deceased, was a bogey as, just because the deceased was wearing a sari at the time of occurrence, did not mean that no duppata could have CRA No.D-758-DB of 2008 24 been lying at home or even especially brought and kept there for that purpose.
33. Learned Additional Advocate General has, therefore, made a plea that in view of the fact that there is fully substantiated medical evidence that the deceased had died of asphyxia due to strangulation and not due to any injuries caused by a fall, it was obvious that the fall, on account of a push by appellant No.2, was only an additional factor, to the extent that having pushed the deceased down the stairs and her not having died on account of that, she had been strangulated in the manner admitted by the accused before the police, i.e. the mother-appellant No.2, Shakuntala, held Mamta's legs, his brother Ramesh Tiwari held her hands and appellant No.1-Ganesh Tiwari strangulated her throat with the chunni.
34. He further states that additionally, the mother-in-law, i.e. appellant No.2, also did not attempt to take her (Mamta) to hospital, thereby confirming her involvement in the crime and, as such, she too should be convicted under Section 302 read with Section 34 IPC on both counts, i.e. on account of having held the deceased's arms/legs and while appellant No.1 strangulated her with a chunni, and on account of not taking her to hospital.
35. The learned Additional Advocate General has further relied upon a judgment of Hon'ble the Supreme Court in the case of Jayabalan Vs. Union Territory of Pondicherry, (2010) 1 SCC 199. He has specifically relied upon paras 13 to 18 to emphasise his submission, with regard to enhancement. He, therefore, contends that the case factually falls CRA No.D-758-DB of 2008 25 under Section 302 read with Section 34 IPC and not under Section 304-B IPC and, consequently, conviction should be made under Section 302 IPC.
36. In the judgment cited by the learned Additional Advocate General, it has been observed as follows, by their Lordships in Paragraphs No.12 to 18:-
12. Before dwelling into the evidence on record and before addressing the rival contentions made by the parties, we would like to reiterate the well-established legal position with regard to the scope of interference with an order of acquittal. It is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
13. In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, this Court observed as follows in para 5 : (SCC pp. 799-800) "5. An appellant aggrieved by the overturning of his acquittal deserves the final courts deeper concern on fundamental principles of criminal justice. But we hasten to add even here that, although, the learned Judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reasons that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the appellate court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the CRA No.D-758-DB of 2008 26 rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court's judgment survives this exacting standard."
14. In Bishan Singh v. State of Punjab, (1974) 3 SCC 288 : 1973 SCC (Cri) 914, this Court aptly summarised the legal position as follows in para 21: (SCC p. 294) "21. It is well settled that the High Court in appeal under Section 417 of the Code of Criminal Procedure has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as: (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
15. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 :
(2007) 2 SCC (Cri) 325, this Court held as follows in para 42: (SCC p.
432) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.CRA No.D-758-DB of 2008 27
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. Recently, this Court in Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60, observed as follows in para 50:
(SCC p. 468) "50. A Constitution Bench of this Court in M.G. Agarwal v.
State of Maharashtra, AIR 1963 Supreme Court 200 :
CRA No.D-758-DB of 2008 28
(1963)1 Cri LJ 235, observed as under: (AIR pp. 205-06, paras 16-17) There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate court the High Court is generally slow in disturbing the finding of fact recorded by the trial court, particularly when the said finding is based on an appreciation of oral evidence because the trial court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. . . . .
The test suggested by the expression substantial and compelling reasons should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the CRA No.D-758-DB of 2008 29 High Court must necessarily characterise the findings recorded therein as perverse.
The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial court was erroneous. In answering this question, the Supreme Court would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court."
(underlined* for emphasis)
17. One of us (Bhandari, J.) summarised the legal position in Ghurey Lal case as follows in paras 69 and 70: (SCC p. 477) "69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take CRA No.D-758-DB of 2008 30 a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has very substantial and compelling reasons for doing so.
A number of instances arise in which the appellate court would have very substantial and compelling reasons to discard the trial court's decision. Very substantial and compelling reasons exist when:
(i) the trial court's conclusion with regard to the facts is palpably wrong;
(ii) the trial court's decision was based on an erroneous view of law;
(iii) the trial court's judgment is likely to result in grave miscarriage of justice;
(iv) the entire approach of the trial court in dealing with the evidence was patently illegal;
(v) the trial court's judgment was manifestly unjust and unreasonable;
(vi) the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(vii) this list is intended to be illustrative, not exhaustive.CRA No.D-758-DB of 2008 31
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached?one that leads to acquittal, the other to conviction the High Courts/appellate courts must rule in favour of the accused."
18. Further, in Raj Narain Singh v. State of U.P., (2009) 10 SCC 362, this Court reiterated the aforesaid view and held that even if two views are reasonably possible, one indicating conviction and other acquittal, this Court will not interfere with the order of acquittal. However, this Court will not hesitate to interfere with such order if the acquittal is perverse in the sense that no reasonable person would have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust (see also Chikkarangaiah v. State of Karnataka, (2009) 17 SCC 497."
Though this judgment actually pertains to a case of conviction by the Madras High Court under Section 302 IPC, after the trial Court had acquitted the accused, to our mind the same principle would apply even where the question is of conviction for murder, as against conviction for a lesser offence of a 'dowry death'.
We would, therefore, now proceed to appreciate the evidence to determine whether it is a case for acquittal, maintenance of conviction & sentence as it is, or for conviction under Section 302, and consequent enhancement of sentence.
37. After hearing the learned counsel for the parties and on appreciation of the evidence led by the prosecution as well as by the defence, the obvious questions that arise are:-
(i) Whether the defence version, supported to a large extent by two witnesses of the neighbourhood, is to be believed, CRA No.D-758-DB of 2008 32 viz., did the deceased, Mamta, die as a result of the fall from the stairs and resultant injuries No.1 to 4, described in Para No.14 of the trial Court judgment, especially injury No.1?
ii) If so, was the ligature mark on her neck simply on account of "accidental hanging" on her saree, while falling down? If not, how was it caused?
(iii) Whether the death of the deceased can be termed "only"
as a dowry death in view of the testimony of complainant-Ramesh Kumar (PW5) and his uncle-Vinay Kumar (PW6), or whether it is a murder?
(iv) If it is a dowry death, what of the specific medical opinion stating that she died as a result of asphyxia due to strangulation? That is to say was the strangulation self-caused?
(v) Whether appellant No.1, Ganesh Tiwari was present at home when the death of his wife took place?
(vi) If the prosecution version is to be believed, then, whether both the appellants before us are guilty or is it only appellant No.2, i.e. Shakuntala, or appellant No.2 along with some other persons, who are guilty?
38. All the above points, being intricately linked, are being discussed together rather than separately.
39. The defence would have us believe that on 02.12.2006 Mamta was on the roof and putting down/picking up clothes and came down by the CRA No.D-758-DB of 2008 33 bamboo stairs (straight ladder) and, in the process, tripped and fell down, leading to injuries on her parietal and head region, to which she succumbed; and in this process, the bruises on her chest and back, came to be caused.
This version is backed by the testimony, in Court, of DW1 (Nisha Devi), who is a neighbour and claims to be the last person with whom Mamta (deceased) communicated, on the roof, before descending the stairs. Thus, at first blush, this would not seem implausible, in view of the fact that it would generally be unlikely that a neighbour would try and protect accused neighbours when the younger lady of the house, and an age mate, has died in unnatural circumstances. Further, another neighbour, i.e. DW2 (Sanjay Jha), in all material particulars, supports DW1, except to the extent of removal of the allegedly entangled Saree from the stair case. As has been noted earlier, that the original testimony in Hindi, as recorded in the trial Court, does not contain any sentence of DW2 stating that he helped DW1 in untangling the Saree from the stairs. This sentence occurs only in the English translation of the original testimony in Hindi and is, therefore, obviously to be discarded.
Even if the sentence is taken to have been uttered by DW2, thus almost completely supporting the testimony of DW1, what has not been explained adequately by the defence, is the nature of the ligature mark, on the neck of the deceased.
40. The defence version, that the ligature mark occurred as a result of the Saree of the deceased getting entangled across her neck in the ladder/stairs is too unrealistic to be believed, in view of the fact that the said mark, as we have clearly seen in the photographs, goes in a straight line CRA No.D-758-DB of 2008 34 across the throat and neck of the deceased, from front to back/vice versa. A ligature mark caused by hanging from a ladder would go in an upward direction from the centre/below or even above the throat, towards the ears. Those marks that we have seen on the body, in the photographs, are going, as already stated, in a straight line from front to back/back to front. These marks, in our considered view, could have only been caused, by strangulation with a rope or a piece of cloth, in a deliberate manner. The entanglement with a saree, while falling from a straight bamboo ladder of a maximum height of 10 feet, would not cause such prominent ligature marks in a straight line, as are obvious in the photographs. Moreover, if the ligature marks had been caused by strangulation with a saree due to a fall, it would be a case of accidental hanging in which case, again the marks would not be in a straight line across the throat and neck. Even if it is presumed that the "pallu" of the saree was draped around the neck of the deceased and could have got caught in the ladder, such a ligature again would not be in a straight line but would go upwards towards the ears or downwards.
Moreover, as per the post mortem report, there were multiple bruises on the chest and back of the deceased. Obviously, in case of a fall, in which the deceased hit her head on the parieto-temporal region, as stated in the post mortem report, bruises would have only been on the front side of the body and not on the back. The factum of multiple bruises on the front and back, seen together with the nature of the ligature marks, leaves no manner of doubt in our minds, that the bruises all over her body were due to a struggle, and not by way of an accidental fall, and, to that extent, the disclosure statements of the accused, to the effect, that she was first pushed CRA No.D-758-DB of 2008 35 from the stairs by appellant No.2, would strengthen the case of the prosecution, without doubt. Though statements before the police, even leading to disclosure, may not always be reliable, however, in the particular circumstances enumerated above, the fall from the ladder as a result of a deliberate push is a real probability.
In any case, even if the fall is taken as accidental, for the sake of argument, though highly improbable in the circumstances, there is no manner of doubt that the strangulation was not accidental.
41. The above conclusion, would now again need to be tested on the strength of the testimony of the defence witnesses.
DW1, Nisha, in her testimony before the Court, stated that she was on the roof with the deceased, when the latter started descending the stairs with a bundle of clothes and fell down. As per her version, she (Nisha) made a noise and, at that time, only the mother-in-law of the deceased, appellant No.2, was present at the home. She further testified that when she (Nisha) came down from the roof, she saw Mamta lying on the floor with her Saree hanging on the stairs and that Shakuntala was weeping. She further stated that Sanjay Jha, came to the spot upon hearing the noise. Then she and Sanjay Jha released the Saree of the deceased, and thereafter, Sanjay Jha went to call the doctor. The doctor arrived after half an hour and declared Mamta dead.
As regards the presence of appellant No.1, according to DW1, it was actually the younger brother Ramesh Tiwari (declared juvenile), who came to the house and thereafter called his brother (appellant No.1) and his father.
CRA No.D-758-DB of 2008 36
A scrutiny of the police file shows that this statement is materially different to the statement given by the said Nisha Devi (DW1) before the police (HC Badan Singh, PW4) at the time of occurrence.
In her statement, at that time, as recorded in the police file, there is no mention, whatsoever, of Sanjay Jha and, in fact, she also did not state that she was on the roof with the deceased before the ladder fell down. In fact, her statement then recorded was that appellant No.2, Shakuntala, came and told her that Mamta had fallen from the stairs and thereafter she (Nisha Devi) went to Shakuntala's house and saw Mamta lying unconscious near the ladder. At the same time, their neighbour, Olihan, also came there and the three of them, i.e. Nisha, Olihan & Shakuntala (appellant No.2), picked up Mamta and took her to the room and laid her down on the floor. Thereafter the doctor came and declared her dead.
The statement of Olihan, wife of Usman Ali, is also present in the police file which also states the same thing as was stated by DW1 (Nisha Devi) in her statement to the police after being summoned under Section 175 Cr.P.C. To similar effect is the statement of appellant No.2 (Shakuntala Devi) under Section 175 Cr.P.C. The difference between Shakuntala Devi's statement and that of the two other ladies, is that her son, Ganesh Tiwari, also came after a while and thereafter the doctor came. The arrival of Ganesh Tiwari is not mentioned either by Olihan or Nisha Devi.
Doctor Parveen Kumar's statement before the police on the said date also states that he was called by one Ashit Kumar, and at that time Ganesh Tiwari (appellant No.1) was also present with him, who left immediately, after which said Parveen Kumar (doctor), also went to Ganesh CRA No.D-758-DB of 2008 37 Tiwari's house, and checked and found Mamta to have already expired.
42. The statement of Ashit Kumar is also found to have been recorded under Section 175 Cr.P.C. by PW4 (HC Badan Singh), to the effect that he had come to his sister (Nisha Devi) and at that time appellant No.2 (Shakuntala) came to Nisha Devi's house and told her about Mamta falling from the stairs. As per the said Ashit Kumar, he followed his sister till the gate, where upon, she (Nisha Devi) told him to go and call the doctor. He then went to Santoshi Clinic and found Ganesh Tiwari sitting there, to whom he narrated the occurrence, who then left for his house and the doctor also left along with him.
When we see all these statements, one thing becomes apparent is that, DW2 (Sanjay Jha) was not on the scene. Otherwise, he would also have been summoned by the police under Section 175 Cr.P.C. at that stage. Or, at least, there would have been even a mention of him in the statements of Nisha Devi, Ohilan and Ashit, before the police. Obviously, he was introduced as a witness at the stage of the trial and is thus, a tutored witness.
This fact is further fortified when the statement of appellant No.1 (Ganesh Tiwari), made before the police on 03.12.2006, with regard to the death of his wife, is seen (before the complaint was registered by PW5), wherein he has also stated that his neighbour, Ashit Kumar, came to the doctor's clinic and informed that his wife had fallen from the roof, upon which he went home and the doctor came immediately behind him. Thus, here also there is no mention of Sanjay Jha (DW2).
43. Coming back to the testimony of DW1 (Nisha Devi) comparing her statement on Oath before the trial court with her statement under Section CRA No.D-758-DB of 2008 38 175 Cr.P.C., as also the other statements made under Section 175 Cr.P.C.; other than the material discrepancy of her having introduced the presence of Sanjay Jha, what is materially different is the fact that, for the first time, before the trial Court, she stated that she was on the roof, talking to Mamta, immediately before she fell down, and further, she stated that she immediately made a noise and at that time Shakuntala was at home. She then went into the house of Mamta.
Thus, before the trial Court DW1 has projected herself to be an eye witness to the falling of Mamta from the stairs and, as such, she claims to have raised the first noise of Mamta falling down. This statement is completely contradictory to her own statement under Section 175 Cr.P.C., as also the statement of others, namely Shakuntala Devi (appellant No.2) herself, Olihan, and Ashit (who stated that he is brother of DW1-Nisha Devi), wherein all four of them said that Shakuntala came to Nisha Devis' house, upon Mamta having fallen down from the stairs.
Strangely, the defence neither produced Ashit Kumar nor Olihan wife of Usman Ali, nor even Doctor Parveen Kumar, who were the most important witnesses at the time of the occurrence. Of course, they were not produced by the prosecution either; however, their non-production as witnesses by the defence, punctures the defence, as then Nisha Devis' projection as an eyewitness would obviously have been belied.
44. As regards DW-2, Sanjay Jha, his presence at the scene of occurrence not having been recorded anywhere at the actual time of the occurrence and, as seen above, his presence not having been mentioned by anyone, including the appellants, at the time when statements were recorded CRA No.D-758-DB of 2008 39 under Section 175 Cr.P.C., he has obviously been introduced as a defence witness only at the stage of the trial. We, thus, find him to be a tutored witness and, as such, his testimony is to be rejected.
45. Coming now to the testimony of PWs 5 and 6, i.e. Ramesh Kumar, brother, and Vinay Kumar, uncle, of deceased Mamta, which provides the motive for the murder, as already recounted earlier in this judgment. Both these witnesses stated on oath before the trial court, that there was a demand for cash, both, at the time of marriage of the deceased with appellant No.1 and again, thereafter, on the ground that a house had to be constructed. In all, they stated on oath that the accused had been initially given Rs.30,000/-, thereafter three FDRs (Kisan Vikas Patra) of Rs.25,000/- in Mamta's name and yet again Rs.30,000/- for construction of the house.
No doubt, there is no substantive proof of handing over the cash (Rs.30,000/- each, on two different occasions), but the execution of the Kisan Vikas Patras for value of Rs.25,000/- in favour of deceased Mamta is duly proved, photocopies of which are available on record. In any case, the said fact is not denied, though defence has argued that since these "cash certificates" were in the name of the deceased, therefore, they could not be termed as dowry articles.
This, of course, is a fact; however, also keeping in view the fact that, as per PWs 5 and 6, this amount was preceded and followed by giving cash amounts of Rs.30,000/- each, the said certificates, given by the uncle of the deceased, in the name of the deceased was naturally, for benefit of her and her family. Even if it is treated to be a gift from uncle to niece, there is no reason to disbelieve, in the facts and circumstances, that the CRA No.D-758-DB of 2008 40 demand for dowry had not been made and on the refusal to satisfy the continuing demand, the deceased was done to death. We will discuss further down, why the statements are considered to be true, in the absence of reasons to falsely implicate the accused, as also because of 'non-roping in' of appellant No.1's father.
46. Learned defence counsel has strenuously argued in favour of granting benefit of doubt to the accused on account of the above, as also the fact that it has been established on record (according to learned counsel), that appellant No.2, Shakuntala, was the only person present in the house at the time of occurrence.
This brings us to the next most material point, as to whether appellant No.1 and/or his brother (juvenile) were present at the time of occurrence or not.
47. A reading of the entire evidence, including the statements under Section 175 Cr.P.C., apparently would show that witnesses (whether produced in the Court or not), at the time that they came to the house of the deceased, gave statements under Section 175 Cr.P.C., that only appellant No.2, Shakuntala, was present.
However, these statements are not statements of the occurrence itself, but immediately after the death of the deceased. Taken with the fact that DW1 (Nisha Devi), has deliberately projected herself to be an eye witness of the incidence of Mamta falling down from the stairs, which has been disproved as above, on account of her own contradictory statement, and statements made by others, under Section 175 Cr.P.C., it leads us to only one conclusion, i.e. that the whole scene of the non-presence of CRA No.D-758-DB of 2008 41 appellant No.1 was "doctored". Having committed the murder, appellant No.1 went to the clinic of Doctor Parveen Kumar, in order to create an alibi for himself. This finding is reached, without option of any other, when we come back again to the fact that the deceased, Mamta, was strangulated, as evidenced by the ligature marks on her throat and neck, and the injuries on her front and back and further, in the light of the extremely material contradictions in the statements of the defence witnesses, as already discussed above.
Further, his conduct in giving a false version of the death of Mamta to the police, showing it to be an accidental death, makes it obvious that he was instrumental in the commission of the crime and it was not an act committed by Appellant no. 2 only, who would be unable to commit it single handedly. He was, as a matter of fact, obviously very much present in the house when the crime was committed, or else would have no reason to go along with his mother, by giving a concocted story.
Non-production of Doctor Parveen Kumar, and the neighbour Olihan, wife of Usman Ali, as also Ashit Kumar, as defence witnesses, and the specific introduction of DW2 (Sanjay Jha) as a tutored witness, and the glaringly false testimony of DW1, all seen together with the ligature marks and injuries on the body of the deceased, all lead to us to the above inevitable conclusion, with no room for doubt.
As regards appellant No.2, i.e. his mother, Shakuntala, her presence at the spot, in any case, is not under doubt. Further, in the disclosure statement made by her, the lack of respect she had for her CRA No.D-758-DB of 2008 42 deceased daughter-in-law, is obvious when she called her unintelligent ("motey dimagh ki").
48. Coming back to the credence of the testimony of PWs 5 & 6. In the entire evidence given by them, they have not pointed any finger against Sindheshwar Tiwari, father of appellant No.1 and husband of appellant No.2, even though he lived in the house, along with appellants. The accusing finger of the complainants has gone only towards the appellants, thus giving further credence to the testimony of these prosecution witnesses, who would not have any reason to falsely implicate the deceased's husband and mother.
49. As regards whether the deceased, Mamta, purposely strangulated herself, looking at it from the point of view that, initially, the police had invoked Sections 174/175 Cr.P.C., we do not find any evidence at all in this direction and obviously the same was also discarded by the prosecution at the initial stage itself. Further, there is not even a whisper in that direction by the defence at any stage, whatsoever. Appellant No.1, Ganesh Tiwaris' statement to the police on 03.12.2006, giving his story on the death of wife, does not even suggest suicide.
The strangulation marks on the deceased's neck and throat having been caused by strangulating herself with her sari or a dupatta, is not a possibility, in view of the fact that there is not even an iota of evidence of her having hung herself from either the roof/ceiling, or even the bamboo stairs. Hence, simply on account of Sections 174/175 Cr.P.C. having been invoked by the police, there is no logical reason, whatsoever, to come to any conclusion that she committed suicide by hanging herself. CRA No.D-758-DB of 2008 43
50. Hence, after appraisal of the medical and photographic evidence, as also the conduct of the accused and the defence witnesses, together with the case of the prosecution witnesses (PWs 5 and 6 especially), we would not also disbelieve the disclosure statements given by the accused, leading to recovery of the "dupatta (Chunni)" and gold ear tops, at the hands of the accused.
Thus, in the totality of the circumstances, we have no manner of doubt in our mind, that both the accused are guilty of having committed an offence under Section 302 IPC.
We are obviously saying nothing with regard to the role of the brother of appellant No.1 and younger son of appellant No.2, who was a juvenile and was tried separately by the competent Court and has now, as we are informed, been acquitted. However, as regards appellants No.1 and 2, they are both guilty of the commission of crime.
51. In view of the above, we allow Crl. Appeal No.D-758-DB of 2008 filed by the State and hold both the accused guilty of an offence under Section 302 IPC, read with Section 34 IPC, and they are convicted as such, for having committed the murder of Mamta, wife of appellant No.1 and daughter-in-law of appellant No.2. The conviction by the trial court, under Section 304-B, read with Section 34 IPC, as also sentence imposed thereunder, are, consequently, set aside and the minimum punishment awardable for an offence under Section 302 IPC, is inflicted upon the accused (appellants No.1 and 2), sentencing them both to imprisonment for life.
CRA No.D-758-DB of 2008 44
Crl. Appeal No.S-1826-SB of 2008 filed by Ganesh Tiwari and Shakuntala (appellants No.1 and 2) is dismissed.
Lower Court's record be returned to the concerned branch forthwith.
( AMOL RATTAN SINGH ) ( SATISH KUMAR MITTAL )
JUDGE JUDGE
07.05.2013
Anand/vcgarg