Punjab-Haryana High Court
Naresh Kumar vs State Of Haryana on 6 November, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
.IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) Criminal Appeal No.D-832-DB of 2008
Date of decision : 06.11.2012
Naresh Kumar
....APPELLANT
VERSUS
State of Haryana
....RESPONDENT
(ii) Criminal Appeal No.D-388-DB of 2009
State of Haryana
....APPELLANT
VERSUS
Smt.Kamlesh and others
....RESPONDENTS
(iII) Criminal Revision No.473 of 2009
Daya Kishan Sharma
....PETITIONER
VERSUS
Mahabir Singh and others
....RESPONDENTS
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE INDERJIT SINGH
***
Present : Mr.Vinod Ghai, Senior Advocate with Mr.Ashwani Bhardwaj, Advocate, for the appellant in Criminal Appeal No.D-832-DB of 2008 and for respondents in Criminal Appeal No.D-388-DB of 2009 and Criminal Revision No.473 of 2009.
Mr.R.K.S.Brar, Addl. Advocate General, Haryana, Crl. Appeal No.D-832-DB of 2008 and other connected cases [2] for the appellant in Criminal Appeal No.388-DB of 2009 and for respondent-State in Criminal Appeal No.D-832-DB of 2008 and Criminal Revision No.473 of 2009.
Mr.Gopal Sharma, Advocate, for the petitioner in Criminal Revision No.473 of 2009.
*** INDERJIT SINGH, J This judgment shall dispose of Criminal Appeal No.D-832- DB of 2008 filed by Naresh Kumar, Criminal Appeal No.D-388-DB of 2009, filed by State of Haryana and Criminal Revision No.473 of 2009, filed by petitioner Daya Kishan Sharma as these arise out of the judgment and order of sentence dated 31.10.2008, passed by the Addl. Sessions Judge, Jhajjar. vide which appellant Naresh Kumar has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years under Section 302 IPC whereas other accused namely Smt.Kamlesh, Mahabir Singh and Sonu @ Satpal have been acquitted.
FIR in the present case has been registered on the basis of application given by Daya Kishan Sharma, complainant at 9:15 p.m. on 19.07.2005 to ASI Ombir of Police Post Sasrauli. After making endorsement, application was sent for registration of the FIR. As per this application, Asha Lata, daughter of complainant, was married with accused Naresh Kumar on 11.02.2005. Both of them resided in village Sehalanga, District Jhajjar. Sufficient dowry was Crl. Appeal No.D-832-DB of 2008 and other connected cases [3] given in the marriage but even then they demanded dowry articles from his daughter again and again. Kamlesh, mother-in-law, Mahabir Singh, father-in-law, Naresh Kumar, husband and Sonu brother in law (Devar) of deceased Asha Lata, harassed her for bringing more dowry articles. On 19.07.2005 at about 1:30 p.m., Mahabir, father-in- law of Asha Lata, gave information to the complainant on telephone that he may reach to his house. The complainant alongwith his brother Raj Kumar went to village Sehalanga where he found his daughter dead. The complainant was confident that his daughter has been murdered by these greedy persons of dowry articles by strangulating her. After leaving his real brother Raj Kumar with the dead body, when the complainant was going to report the matter to Police Post Sasrauli, ASI Ombir, who alongwith police party, was on patrolling at Sasrauli chowk, met him to whom the application was given. Investigating Officer alongwith police party and complainant Daya Kishan went to the place of occurrence and found the dead body of Asha lying on the bed. He also noticed that a wooden stool and a chunni was also lying nearby the dead body. Photographs were taken. Inquest report was prepared and dead body of Asha was handed over to Constable Suresh Kumar for conducting the post mortem examination. Investigating Officer inspected the spot and prepared rough site plan Ex.PH. The ornaments of the deceased were also taken into police possession vide recovery memo Ex.PG after preparing sealed parcel. Statements of witnesses were Crl. Appeal No.D-832-DB of 2008 and other connected cases [4] recorded. Accused Naresh was produced by Jagat Singh, Sarpanch on 25.07.2005 before ASI Bimla Devi and was arrested. On interrogation, he suffered disclosure statement and in pursuance of that disclosure statement, he got recovered the dowry articles and the same were taken into police possession. On 02.08.2005, Smt.Kamlesh was produced by PW Ram Avtar and was arrested. On 17.08.2005, accused Mahabir and Sonu were also arrested. After necessary investigation, challan against the accused was presented.
On presentation of challan, copies of challan and other documents were supplied to the accused under Section 207 Cr.P.C. Finding a prima facie case against the accused, they were charged for the offences under Sections 498-A, 302, 304-B and 406 read with Section 34 IPC to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 Daya Kishan, complainant, who mainly deposed as per prosecution version. PW2 Ramesh Chander, neighbour of the complainant, identified the dead body of Asha. PW3 ASI Ashok Kumar deposed regarding scribing of FIR on the basis of ruqa Ex.PB. PW4 Constable Jai Chand prepared the scaled site plan Ex.PE. PW5 Dr.Ved Pal, conducted the postmortem examination on the dead body of Asha alongwith Dr.Kumud Sharma and found three contusions of size 6 x 1 cm, parallel to each other on right frontal part of neck, starting from middle to the right mastoid process on cut section of the contusion echymoses and hemorrhagic area present in Crl. Appeal No.D-832-DB of 2008 and other connected cases [5] subsucaneous tissue and neck muscle. Tracheal and laryngal cartilage fracture underlying tissue shows hemorrhage area. As per the opinion of the doctors, the cause of death in the case was due to asphyxia as a result of manual throttling which is ante-mortem in nature and sufficient to cause death in ordinary course of nature. PW6 Sushil Kumar, Photographer, deposed regarding the negatives Ex.P1 to Ex.P6 and photographs Ex.P7 to Ex.P12. PW7 Raj Kumar, brother of complainant Daya Kishan, deposed that Asha was being harassed by her husband Naresh, her mother in law Smt.Kamlesh, father-in-law Mahabir and brother-in-law Sonu @ Satpal. He also deposed that they had taken Panchayat on 2-3 occasions in the house of accused. PW8 Head Constable Shri Niwas is the witness of recovery memo Ex.PG. PW9 Smt.Bimla Devi ASI mainly deposed regarding some investigation conducted by her. PW10 ASI Ombir Singh, Investigating Officer, deposed regarding the investigation of the case. PW11 Sub Inspector Rajpal mainly deposed regarding preparing the report under Section 173 Cr.P.C.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and confronted with the evidence of prosecution. The accused denied the correctness of evidence and pleaded themselves as innocent. Accused Naresh Kumar took the plea that he is innocent and has been falsely implicated in the present case. Asha used to ask him to live alongwith him at the station of his posting. He is serving in Central Crl. Appeal No.D-832-DB of 2008 and other connected cases [6] Military Police. He used to tell her that he was not having any accommodation to keep her with him there. Because of this reason, she started living in depression and ultimately she committed suicide.
In defence, the accused examined DW1 Kamal, neighbour, who mainly deposed that it was a simple marriage and there was no demand of dowry. The accused party never raised any demand of dowry nor they treated the deceased Asha with cruelty. DW2 Rattan Singh also deposed the same facts as stated by DW1 Kamal.
The trial Court, after appreciation of evidence, convicted and sentenced appellant-accused Naresh whereas Smt.Kamlesh, Mahabir Singh and Sonu @ Satpal were acquitted.
At the time of arguments, learned counsel for appellant Naresh contended that Naresh is innocent and has been falsely implicated. It is a case of suicide by hanging and not a case of strangulation. He also contended that there was no motive to cause the occurrence as demand of dowry has not been proved and the PWs have admitted that no dowry was given at the time of marriage.
On the other hand, learned Addl. Advocate General, Haryana contended that from the evidence on record, it is proved that it is a case of strangulation and death took place in the house of accused Naresh Kumar. He also contended that the statements of PWs are duly supported by medical evidence and investigation of the Crl. Appeal No.D-832-DB of 2008 and other connected cases [7] case and there is no evidence on the record to show that it is a case of hanging. There is no evidence on record to show that the deceased has committed suicide.
Learned Addl. Advocate General, Haryana and learned counsel for the revision-petitioner contended that the case has been duly proved against accused Smt.Kamlesh, Mahabir and Sonu @ Satpal and they be also convicted alongwith Naresh Kumar.
We have heard learned counsel for the appellant, learned Addl. Advocate General, Haryana and learned counsel for the revision-petitioner and with their assistance, we have gone through the evidence on record minutely and carefully.
From the evidence on record, we find no merit in the arguments of learned counsel for appellant Naresh Kumar. There is no evidence on the record to prove that it is a case of suicide by hanging. No witness has stated that deceased has committed suicide. Even the DWs, out of which one is neighbour, have not stated that it is a case of suicide. There is no witness produced by the accused in the present case who has seen the dead body hanging with the help of chunni on the fan etc. There is no evidence on the record that who had brought down the dead body from the fan on the bed. Even the accused in their statements recorded under Section 313 Cr.P.C., have not stated anything that who brought down the dead body or it was hanging. The mere fact that on the bed a small table in turned condition lying itself will not prove that it is a Crl. Appeal No.D-832-DB of 2008 and other connected cases [8] case of suicide. There is no explanation even in the statement of accused Naresh Kumar under Section 313 Cr.P.C. that where he was at the time of occurrence and how the said occurrence took place. Learned counsel for appellant Naresh Kumar relied heavily on the opinion of the doctor in cross-examination given on a suggestion that in this case possibility of hanging cannot be ruled out. Merely on this opinion in cross-examination regarding the possibility, it cannot be held that it is a case of suicide by hanging and is not a case of strangulation. The post-mortem was conducted by team consisting of PW5 Dr.Ved Pal and Dr.Kumud Sharma and both the doctors in postmortem report, have given the opinion regarding the cause of death as due to asphyxia as a result of manual throttling which was ante-mortem in nature and sufficient to cause death in ordinary course of nature. We have also seen the photographs. Though, the ligature mark was from middle towards right side but ligature mark looks to be in the middle of the neck and is of such a shape which shows that it was not due to hanging, rather, the ligature mark shown in the photographs, looks as a result of strangulation. In the absence of any evidence on record in no way, it can be held that it is a case of suicide. As per the injuries, there were three contusions of the size 6 x 1 cm, parallel to each other on right frontal part of neck. The mere fact that there was no thumb impression or finger print impression on the neck itself does not show that it is a case of strangulation.
Crl. Appeal No.D-832-DB of 2008 and other connected cases [9] As already discussed, there is no evidence including the statements of accused recorded under Section 313 Cr.P.C, that who had seen the dead body of Asha in hanging position nor there is any evidence on record that who brought down the dead body on the bed. The defence version cannot be believed. The prosecution has duly proved its case by leading cogent evidence beyond any reasonable doubt. Statements of witnesses are duly supported by medical evidence, therefore, the conviction of appellant-accused Naresh Kumar is upheld.
As regarding the acquittal of Smt.Kamlesh, Mahabir and Sonu @ Satpal, we find that there is no cogent evidence on record to prove the participation of these persons in the murder of Asha Lata. Secondly, there is no cogent evidence on record regarding harassment of Asha Lata on the ground of demand of dowry by these persons. There are only general allegations against them. No specific demand has been shown to be raised by any of these three persons nor there is any specific incident stated by PWs regarding the harassment given by them to deceased Asha Lata.
Therefore, from the evidence on record, we find that the prosecution has failed to prove the guilt of Smt. Kamlesh, Mahabir and Sonu @ Satpal by leading cogent evidence beyond any reasonable doubt. Therefore, their acquittal is also upheld.
Therefore, from the aforesaid discussion, we find no merit in the appeals filed by appellant Naresh Kumar and State of Haryana Crl. Appeal No.D-832-DB of 2008 and other connected cases [10] and revision petition filed by petitioner-complainant Daya Kishan Sharma and the same are dismissed.
(SATISH KUMAR MITTAL) (INDERJIT SINGH)
JUDGE JUDGE
06.11.2012
mamta
Crl. Appeal No.D-832-DB of 2008 and other connected cases [11]