Punjab-Haryana High Court
Kanwarpreet Sikngh And Others vs State Of Punjab And Others on 27 March, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.530-DB of 2007 1
Criminal Revision No.1414 of 2007
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:March 27, 2012
Criminal Appeal No.530-DB of 2007
Kanwarpreet Sikngh and others
......Appellants
Versus
State of Punjab and others
.......Respondents
Criminal Revision No.1414 of 2007
Dr.Jaspal Singh
......petitioner
Versus
Kanwarpreet Sikngh and others
.......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.S.Cheema, Sr. Advocate with
Ms.Tanu Bedi, Advocate and
Mr.Pardeep Singh Poonia, Advocate
for the appellants.
Mr.P.C.Goyal, Addl.A.G.Punjab.
Mr.A.P.S. Deol, Sr.Advocate with
Mr.Vishal Rattan, Advocate
for the complainant.
****
Criminal Appeal No.530-DB of 2007 2
Criminal Revision No.1414 of 2007
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeal and revision petition will be disposed of as these have arisen out of a common incident/ judgment.
Prosecution story, in brief, is that Harneet Kaur, daughter of complainant Jaspal Singh Mehta, was married to appellant Kanwarpreet Singh on 28.12.2003. No child was born to Harneet Kaur out of her wedlock. Harneet Kaur often used to tell the complainant on telephone as well as personally that her in-laws were not treating her properly. On 26.12.2004, marriage ceremony of Puneet Pal Singh Mehta, son of the complainant, was performed at Ludhiana. Appellants as well as Gurpreet Singh @ Ripon, younger brother of Kanwarpreet Singh, attended the wedding. However, all the said four persons did not behave properly during the wedding ceremony of his (complainant) son. They complained qua trivial matters. On 2.1.2005, reception party had been arranged at Shimla after the marriage of his son. Harneet Kaur and her in-laws were made to stay in the same hotel, where the arrangement for stay of other relatives had been made. Harneet Kaur and her in-laws reached Shimla on 1.1.2005 to attend the reception party. Even at the time of reception party, the in-laws family of Harneet Kaur kept harassing her alleging that they had not been properly looked after and had not been asked to stay in his house. Harneet Kaur told him qua the harassment meted out to her by her brother-in-law, who had Criminal Appeal No.530-DB of 2007 3 Criminal Revision No.1414 of 2007 kept her under pressure. Harneet Kaur told the complainant that she would not do anything which would degrade his family as his blood was running in her veins. Brother-in-law of Harneet Kaur told her that her family had not treated them properly and he would teach a lesson to her on their return. Due to this annoyance, Harneet Kaur left for Amritsar along with her in-laws on 3.1.2005 at about 1.00 P.M. On the night intervening 3/ 4.1.2005 at about 2.00 A.M., complainant received a phone call from appellant Harjinder Singh that Harneet Kaur was lying unconscious from 11/ 11.30 P.M. onwards and they should reach immediately. Thereafter, he talked to his brother-in-law Jagjit Singh and left for Amritsar. He again called up appellant Harjinder Singh and told him that they should take his daughter to a doctor but he told him that no doctor was available. When he reached matrimonial home of his daughter along with his wife Inderjit Kaur and nephew at 10/ 10.30 A.M. on 4.1.2005, they saw that dead body of Harneet Kaur was lying on a cot in the lobby. His relative Jagjit Singh had already reached the matrimonial home of his daughter. In the bedroom on the first floor, one chair was lying in a tilted condition. A bunch of hair and one cotton string of white colour were also lying there. He was informed by the in-laws of his daughter that she had committed suicide by hanging herself from the ceiling fan. Since he was a professional doctor, he did not believe the story told to him by the in-laws' family of his daughter and informed the police qua the occurrence.
On the basis of the statement of the complainant formal Criminal Appeal No.530-DB of 2007 4 Criminal Revision No.1414 of 2007 FIR No.03 was registered on 4.1.2005 at police station Civil Lines, Amritsar, under Sections 304-B/ 34 of the Indian Penal Code, 1860 (IPC for short).
Accused Gurpreet Singh @ Ripan was declared a proclaimed offender.
After completion of investigation and necessary formalities, challan was presented against the appellants.
Prosecution in order to prove its case examined 8 witnesses.
The appellants, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, pleaded that they were innocent and had been falsely involved in this case.
Appellant Harjinder Singh tendered his written statement, which reads as under:-
"Allegations against me are wrong. I am retired Chief Engineer. After coming back from Shimla, I and my wife went to drop my sister, who was at our house in the absence. We stay at ground floor. Husband of my sister was not well. We after meeting him returned late at night. Later we heard alarm of my son Kanwarpreet Singh. I went upstair and saw Kanwarpreet in a attempt to rescue his wife. We brought her down but by the time she died."
The appellant did not lead any evidence in his defence. Appellant Mukhwant Kaur tendered her written statement, Criminal Appeal No.530-DB of 2007 5 Criminal Revision No.1414 of 2007 which reads as under:-
"We had gone to drop my husband's sister to her house after coming back from Shimla. We came back late at night. Later we heard alarm my husband went upstair. I am not keeping well and remain at ground floor. The deceased was brought to ground floor. The allegations against me are false."
Appellant Kanwarpreet Singh tendered his written statement, which reads as under:-
"I am innocent and allegations of maltreatment and demand of dowry are incorrect. I am an architect and my office/ work place is in separate portion of my house. My deceased wife was short tempered and was very hasty. Actually from Ludhiana after marriage of her brother she had gone to Shimla.
My wife was also working with me in my office. She was having her separate bank account etc. Lot of back load of work had gathered in the office. We could not stay for long in Shimla because of urgent office engagement. My wife wanted to stay at Shimla more. But I insisted her to come because of office work. My father's sister Jatinder Kaur lives at Amritsar at a place which is on the other side of city. While going to Shimla we had left my father's sister at our house to look after the house. After our late return to Amritsar, my father and Criminal Appeal No.530-DB of 2007 6 Criminal Revision No.1414 of 2007 mother started to leave her at her house. She wanted to go to her house as her husband was not well.
I went to my office to see my work as some clients were to came next morning to collect plans etc. when late at night I came to my room I saw my wife hanging in a slanting manner from the ceiling fan. A chair was lying fallen and knees of my wife were touching the bed and body was in slanting posture. I raised alarm and we brought her in the ground floor but she was dead by that time. We informed my in-laws also and police. Later a false case is made against us."
The appellants examined five witnesses in their defence. The trial Court vide impugned judgment dated 20.4.2007, convicted the appellants for commission of offence under Sections 302/ 34 IPC. The trial Court further held that offence under Section 304-B IPC was also duly established against the accused. Vide order of the even date, the appellants were sentenced to undergo imprisonment for life and fine of ` 5,000/- for commission of offence under Section 302 reach with 34 IPC. Hence, the present appeal by the appellants and the revision petition by the complainant for enhancement of fine imposed upon the appellants. Prosecution evidence:-
PW-1 Dr.Gurmanjit Rai deposed that on 4.1.2005 at 5.00 P.M. he had conducted postmortem examination on the dead body of Harneet Kaur along with Dr.Shilekh Mittal and observed as under:- Criminal Appeal No.530-DB of 2007 7
Criminal Revision No.1414 of 2007 "Length of body was 5' 7". It was dead body of well built and well nourished young female wearing Mendi colour and orange shirt with flowers, Mendi colour salwar, white brassier, brown kachha, white metallic kara in right forearm, rigor mortis were present, all over the body. Post mortem staining was present on back trunk and extremities sparing areas of contact pressure. Tongue was found pressed in between the teeth. Conjunctiva of both eyes was found markedly congested. We found following injuries on the body of the deceased:-
1.Reddish brown coloured ligature mark 17 x 2.5 cm was present on front and both sides of neck.
Horizontally placed at the level of thyroid cartilage mark was 4 cm below left angle of mandible and on right side from front of neck up to 1 cm below lobula of ear. Ligature mark was faint in colour on right side of neck and on back of neck in the region of nape of neck and was found encircling the neck.
2. Reddish brown coloured oval shaped abrasion 21 cm in circumference and 1.2 cm in width was present below the chin and lower end of the abrasion was found merging with the injury No.1 and 5 cm x 6 cm area of skin in the centre of oval shape was found spared of mark below the chin.
3. Reddish brown abrasion 5 x 1.5 cm was present Criminal Appeal No.530-DB of 2007 8 Criminal Revision No.1414 of 2007 in inner aspect of right thigh which was obliquely placed its upper 1/3., at the lower end of kachhera.
4. Reddish brown abrasion 6.5 cm x 1.6 cm and 7 x 1.5 cm were present on inner aspect of left thigh in its upper 1/3rd at the level of lower end of kachha.
On dissection of neck, injuries No.1 and 2 infiltration of blood was present in the sterno cleido-mastoid- muscles and vessels on left side of the neck and in the muscles of right side of neck, lymph glands were found congested on right side of neck and thyroid cartilage on right side found fractured underneath the ligature mark. Trachea and larynx was found congested."
All the injuries were ante mortem in nature. Cause of death in this case, in their opinion, was asphyxia as a result of ligature strangulation, which was sufficient to cause death in the ordinary course of nature.
The complainant, while appearing in the witness box as PW-5, has deposed as per the contents of the FIR. He has further deposed that he had given sufficient dowry to his daughter at the time of her marriage as per their status. However, the accused were not satisfied with the dowry given by him to his daughter and demanded more dowry. His daughter used to inform him qua the Criminal Appeal No.530-DB of 2007 9 Criminal Revision No.1414 of 2007 harassment meted out to her by the accused on telephone as well as personally. On 1.1.2005, the accused had demanded cash from him to spend the same on the education of Gurpreet Singh in U.S.A. On 3.1.2005, he had given a gold bracelet to appellant Kanwarpreet Singh and gold bangle (kangan) to his daughter and cash amount of ` 50,000/- to appellant Harjinder Singh.
PW-6 Puneet Pal Singh Mehta, while appearing in the witness box, has corroborated the statement of the complainant qua the contents of the FIR. He has further deposed that on one occasion he had handed over a sum of ` 50,000/- to Kanwarpreet Singh when he had come to pick up Harneet Kaur from Chandigarh after the operation of his (PW-6) mother. In the month of October 2004, his father had given ` 80,000/- to appellant Kanwarpreet Singh PW-7 Inspector Sukhwinder Singh deposed that on 4.1.2005, complainant met him near police post Ranjit Avenue, Amritsar and got recorded his statement (Ex.PF). On the basis of the same formal FIR (Ex.PF/1) was registered. Then he visited the spot along with other police officials. Dead body of Harneet Kaur was lying on a settee in the lobby. Photographer was called to the spot and he took photographs of the place of occurrence. He prepared inquest report (Ex.PC) qua the dead body and sent the same for postmortem examination. He inspected the spot and took in possession hair of the deceased, one chair, one dupatta, ceiling fan with bent wing. He prepared rough site plan qua the place of occurrence and recorded supplementary statement of the Criminal Appeal No.530-DB of 2007 10 Criminal Revision No.1414 of 2007 complainant. Accused, who were present in the house, were arrested.
On 5.1.2005, accused Kanwarpreet Singh, during interrogation, suffered a disclosure statement and got recovered one gold bracelet and one gold bangle from the almirah of his bedroom. Defence evidence:
DW-1 Sanjiv Kumar Kaushik deposed that on 28.1.2004, an insurance policy was issued in favour of Harneet Kaur with Kanwarpreet Singh as her nominee.
DW-2 Naveen Malhotra deposed that there was a joint account with their bank in the names of Harneet Kaur and Kanwarpreet Singh. Out of the said account, FDR of ` 50,000/- was issued in the name of Harneet Kaur on 28.8.2004.
DW-3 Gaurav Rehan proved that account No. 006601012718 was in the name of Kanwarpreet Singh.
DW-4 Rishi proved the statement of account No. 1151000132502 in the name of Kanwarpreet Singh. He also proved the statement of account No.1152000003552 in the name of M/s Ideal.
DW-5 Kamini deposed that appellant Kanwarpreet Singh was proprietor of concern Ideal Architect. She was also working in the said concern for the last three years. Wife of Kanwarpreet Singh was also an architect. There were cordial relations between Kanwarpreet Singh and his wife.
Submissions/conclousion:-Criminal Appeal No.530-DB of 2007 11
Criminal Revision No.1414 of 2007 Learned senior counsel for the appellants has first of all submitted that from the medical evidence, it could not be said that it was a case of strangulation. Rather from the medical evidence, it was evident that it was a case of hanging. From the photographs, it was evident that the tongue of the deceased was not in her teeth. In the inquest report, in column No.8, it had been mentioned that the mouth of the deceased was semi open, whereas, the said fact was not evident from the photographs. Tell-tale signs of asphyxia were missing. The doctor had wrongly written that the ligature mark on the neck of the deceased was horizontal. Rather the ligature mark was oblique. The fact that no saliva was found dribbling from the mouth of deceased could be due to the fact, that the face of the deceased might have been cleaned when she was brought from the first floor to the ground floor as the effort of the appellants was to save her.
Learned senior counsel, while submitting that 80% features of strangulation are missing in this case, has drawn our attention to the chart, whereby distinction has been drawn in Modi's jurisprudence and Toxicology 22nd edition (page 270) qua hanging and strangulation. The same is reproduced below for reference:-
Hanging Strangulation 1. Mostly suicidal 1. Mostly homicidal
2. Face- Usually pale and petechiae 2. Face- Congested, livid and marked rare. with petechiae.
3. Saliva-Dribbling out of the mouth 3. Saliva- No such dribbling. down on the chin and chest.
4. Neck-Stretched and elongated in 4. Neck-Not so. fresh bodies.
5. External sings of asphyxia, usually 5. External signs of asphyxia, very well not well marked. marked (minimal if death due to vasovagal and caroti---sinus effect). Criminal Appeal No.530-DB of 2007 12
Criminal Revision No.1414 of 2007 Hanging Strangulation
6. Bleeding from the nose, mouth and 6. Bleeding from the nose, mouth and ears very rare. ears may be found.
7. Ligature mark-Oblique, non- 7. Ligature mark-Horizontal o--- continuous placed high up on the transverse continuous, round the neck between the chin and the neck, low down in the neck below the larynx, the base of the groove or thyroid, the base of the groove or furrow being hard, yellow and furrow being soft and reddish. parchment-like.
8. Abrasions and ecchymoses round 8. Abrasions and ecchymoses round about the edges of the ligature mark, about the edges of the ligature mark, rare. common.
9. Subcutaneous tissues under the 9. Subcutaneous tissues under the mark-White, hard and glistening. mark-Ecchymosed. 10 Injury to the muscles of the neck- 10. Injury to the muscles of the neck-
. Rare. Common. 11 Carotid arteries, internal coats 11. Carotid arteries, internal coats
. ruptured in violent cases of a long ordinarily ruptured. drop.
12 Fracture of the larynx and trachea- 12. Fracture of the larynx and trachea- . Very rare and that too in judicial Often found also hyoid bone. hanging.
13 Fracture-dislocation of the cervical 13. Fracture-dislocation of the cervical . vertebrae-Common in judicial vertebrae-Rare. hanging.
14 Scratches, abrasions and bruises on 14. Scratches, abrasions fingernail . the face, neck and other parts of the marks and bruises on the face, neck body-Usually not present. and other parts of the body-Usually present.
15 No evidence of sexual assault. 15. Sometimes evidence of sexual . assault.
16 Emphysematous bullae on the 16. Emphysematous bullae on the . surface of the lungs-Not present. surface of the lungs-May be present.
Learned senior counsel has also drawn our attention to the chart showing difference between hanging and strangulation as depicted in Medical Jurisprudence and Toxicology by Dr. K.S. Narayan Reddy 1st edition (pages 389, 381, 382). The same is reproduced below for reference:-
Difference between Hanging and Strangulation Criminal Appeal No.530-DB of 2007 13 Criminal Revision No.1414 of 2007 Trait Hanging Ligature Strangulation
1. Ligature mark: It is oblique, does not completely It is transverse, encircle the neck; usually seen completely encircling the high up in the neck between the neck below the thyroid chin and larynx. The base is cartilage. The base is soft pale, hard and parchment-like. and reddish.
2. Abrasions and About the edges of ligature mark About the edges of the ecchymoses: not common. ligature mark are common.
3. Bruising: Of the neck muscles less Of the neck muscles more common. common.
4. Neck: Stretched and elongated. Not stretched or elongated.
5. Subcutaneous White, hard and glistening under Ecchymosed under the tissues: the mark. mark.
6. Hyoid bone: Fracture may occur. Fracture is uncommon.
7. Thyroid cartilage: Fracture is less common. Fracture is more common.
8. Larynx and Fracture rare. Fracture may be found.
traches:
9. Emphysematous Not present on the surface of the Very common on the bullae: lungs. surface of the lungs.
10. Carotid arteries: Damage may be seen. Damage is rare.
11. Face: Usually pale and petechiae are Congested, livid and not common. marked with petechiae.
12. Sign of asphyxia: External signs less marked. External signs well-
marked.
13. Tongue: Swelling and protrusion is less Swelling and protrusion is marked. more marked.
14. Saliva: Often runs out of mouth. Absent.
15. Bleeding: From the nose, mouth and ears From the nose, mouth and not common. ears common.
16. Involuntary Of faeces and urine less Of faeces and urine more discharge. common. common.
17. Seminal fluid: At glans is more common. At glans is less common.
Learned senior counsel has further referred to page 382 of the said jurisprudence to substantiate his argument that it was a case of hanging. The said relevant lines read as under:-
"When a running noose is applied, the weight of the body will cause the noose to tighten in a mainly horizontal position. The mark is seen on both sides of the neck, and is usually directed transversely across the front of the neck resembling that of a ligature mark in strangulation, Criminal Appeal No.530-DB of 2007 14 Criminal Revision No.1414 of 2007 except that it is likely to be seen above the level of thyroid cartilage. If a running noose fails to tighten, the mark may resemble one produced by a fixed loop".
Learned senior counsel has also drawn our attention to Taylor's Principles of Medical Jurisprudence, 13th edition (pages 313 to 317). The relevant lines, referred by the learned senior counsel, on page 316 of the said book, read as under:-
"In general terms, as considered above, in suspension when the full weight of the body is applied it is usual to have a ligature above the larynx, whereas in strangulation it is usually below. Difficulties can arise when the noose has been initially placed lower on the neck and has been pulled up later.
Incomplete suspension, as already mentioned, can have a mark which is almost horizontal and does not rise up to a suspension point, particularly if the noose is of the running type."
Learned senior counsel then drew our attention to table drawn qua difference between hanging and strangulation in HWV Cox on Medical Jurisprudence and Toxicology 7th Edition (page 361) and the same reads as under:-
Difference between Hanging and Strangulation Trait Hanging Ligature Strangulation
1. Face Pale and petechiae are not common It is livid, congested and full of petechiae.Criminal Appeal No.530-DB of 2007 15
Criminal Revision No.1414 of 2007 Trait Hanging Ligature Strangulation
2. Ligature Oblique usually seen high up in the Transverse, completely mark neck above the thyroid cartilage and encircles the neck and incomplete. usually below the thyroid cartilage.
3. Base Pale, hard and parchment like. Soft and reddish.
4. Subcutane It is white, hard and glistening below Ecchymoses present below ous Tissue the mark. the mark.
5. Neck Stretched and elongated. Not so.
6. Hyoid Fracture is common. Fracture is rare.
Bone
7. Thyroid Fracture is rare. Fracture is common.
Cartilage
8. Tongue Swelling and protrusion are not so Are well marked common.
9. Saliva Usually runs out of mouth Absent
10. Bleeding From the nose, mouth and the ears From the nose, mouth and are not so common. ears are common.
11. Involuntary Of the faeces and urine are not Are commonly seen.
Discharge common.
12. Seminal Usually seen at the glans penis. Rarely seen.
Fluid Learned senior counsel has further drawn our attention to letter written by the Investigating Officer to the doctor requesting for cause of death of the deceased. Dr. Gurmanjit Rai and Dr.Shilekh Mittal gave the opinion on 9.2.2005 as under:-
"On going through the postmortem report, this is for your kind information that the cause of death has already been declared as asphyxia as a result of ligature strangulation in our report dated 4.1.2005. This is to further to inform you that there was no stretching of the neck in this case."
Learned senior counsel for the complainant as well as learned State counsel, on the other hand, have submitted that it was a clear cut case of strangulation. The medical evidence in this regard was clear and specific. They have also placed reliance on the Criminal Appeal No.530-DB of 2007 16 Criminal Revision No.1414 of 2007 charts qua difference in hanging and strangulation relied upon by the learned senior counsel for the appellants.
In order to appreciate the arguments raised by the learned senior counsel for both the sides, we have carefully gone through the medical evidence on record and the literature provided to us by the learned senior counsel for the appellants, reproduced above. It is evident from the combined reading of the literature provided to us by the learned senior counsel for the appellants that in a case of strangulation, there is no dribbling of saliva. The neck is not stretched and elongated . The signs of asphyxia are well marked. ligature mark on the neck is horizontal or transverse and is continuous around the neck below the thyroid. Subcutaneous Tissues under the mark are ecchymosed. As per Blacks' Medical dictionary, Ecchymosis means discoloured patch resulting from escape of blood into the tissues just under the skin often from bruising. Fracture of thyroid cartilage is seen.
In the present case, the tongue was found between the teeth. The argument raised by learned senior counsel that from the photographs, it was evident that the tongue of the deceased was not in her teeth is liable to be rejected as after careful perusal of the photographs of the deceased, it cannot be said that the tongue of the deceased was not in her teeth. Further both the doctors have given the said opinion during postmortem examination. The doctor was not confronted qua this aspect in his cross-examination. The mouth of the deceased was semi open as has been written in column No.8 of Criminal Appeal No.530-DB of 2007 17 Criminal Revision No.1414 of 2007 the inquest report but from the photographs, it is not visible as to whether the tongue of the deceased was not in her teeth as suggested by the learned senior counsel for the appellants.
The doctors, who had conducted the postmortem examination, found that reddish brown colour ligature marks were present horizontally at the level of thyroid cartilage marks. A perusal of the photographs of the deceased as well as pictorial diagram attached to the postmortem examination reveals that the deceased had a horizontal ligature mark on her neck which also ran on the back of her nape. The ligature mark was found faint in colour at the back of some portion. The possibility that the said faintness could have been due to the hair of the deceased falling on her neck cannot be ruled out as from the photographs of the deceased, it is evident that she was supporting long hair. Further ligature mark on the back of the neck is also horizontal. Thus, the argument raised by learned senior counsel that the ligature mark was oblique is without any basis and is contradicted by the medical evidence on record.
As per the medical opinion, the neck of the deceased was not found stretched which is another factor which shows that it was a case of strangulation and not hanging. In a case of hanging, as has been opined in the above reproduced charts, saliva is normally seen dribbling out of the mouth. However, a perusal of the medical evidence shows that no such reference had been made by the doctor-PW-1. The suggestion made by the learned senior counsel for the appellants that saliva might have been cleaned from the face Criminal Appeal No.530-DB of 2007 18 Criminal Revision No.1414 of 2007 of the deceased, after she was brought on the ground floor with a view to save her, is not substantiated from record.
The thyroid cartilage of the deceased was found fractured under the ligature mark. The said fact also substantiated the opinion of the board of doctors that it was a case of strangulation. It has been further observed by the board of doctors during postmortem examination that on dissection of neck ( injuries No.1 and 2) infiltration of blood was found present in the sterno cleido- mastoid-muscles and vessels on left and right side of neck. This shows that there was injury to the muscles of the neck as well as there was infiltration of blood in the muscles and vessels on both the sides of neck.
All the above facts lead to the inference hat it was a case of strangulation as major features of strangulation are present in the instant case. The doctor has also given the opinion that the cause of death was asphyxia as a result of ligature strangulation. Further in cross-examination, no suggestion was put to the doctor leading to the inference that the opinion given by the doctor that it was a case of strangulation was not correct. In view of the above facts, the argument raised by learned senior counsel for the appellants that, in fact, it was a case of hanging is liable to be rejected.
Learned senior counsel has next argued that as per Section 176 Cr.P.C., the Magistrate should have held an inquiry into the cause of death either instead of or in addition to the investigation held by the police officer. During the course of arguments, learned Criminal Appeal No.530-DB of 2007 19 Criminal Revision No.1414 of 2007 senior counsel has very fairly conceded that the said provision is directory in nature and not mandatory.
Section 176 Cr.P.C. reads as under:-
Inquiry by Magistrate into cause of death .- (1) When the case is of the nature referred to in clause
(i) or clause (ii) of sub section (3) of section 174, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. (1A) where-
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed. (2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any Criminal Appeal No.530-DB of 2007 20 Criminal Revision No.1414 of 2007 manner hereinafter prescribed according to the circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterested and examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.
(5) The Judicial Magistate or the Metropolitan Magistrate or Executive Magistrate or police after holding an inquiry or investigation, as the case may be, under sub section (1A) shall, within twenty four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.
Explanation.- In this section, the expression "relative" means parents, children, brothers, sisters and spouse." The language of Section 176 Cr.P.C. makes it clear that the inquiry envisaged thereunder is in addition to the investigation Criminal Appeal No.530-DB of 2007 21 Criminal Revision No.1414 of 2007 which is to be conducted under Section 154 Cr.P.C. by the police and not as a substitute thereto.
It has been held by this Court in Piara Singh vs. the State and another AIR 1958 Punjab 430 (Vol.45, C.125), as under:-
"I regret I am unable to hold that a case has been made out for the transfer of this proceeding. In the first place an investigation under Section 176 of the Code of Criminal Procedure occupies no higher position that a coroner's inquest although by virtue of a definition appearing in the body of the Code it has been dignified to the status of a legal proceeding. A Magistrate holding an enquiry under this section acts purely in an executive capacity, for her is required only to ascertain the cause of death and not to establish the rights of parties. His authority thus lacks the first element of judicial power. Proceedings at an inquest are intended to be merely a preliminary investigation and not a trial involving the merits. The result of the enquiry is not binding upon any one and cannot be regarded as a judgment. It is wholly immaterial as far as Courts are concerned whether this enquiry is held by one, executive officer or another, for even if a false accusation is brought against the petitioner and his friends they will have ample opportunity of refuting the charges if and when a criminal case is instituted in a court of law."Criminal Appeal No.530-DB of 2007 22
Criminal Revision No.1414 of 2007 In Sushma vs. State of Haryana and others 2005 (4) RCR (Criminal),788 it has been held as under:-
"Furthermore, it is also evident that any adjudication under Section 176 Cr.P.C in no way decides the right of the parties and cannot by any stretch of imagination be substituted for the trial which a person may have to face if a closure report is not filed by the police. We say this because while assuming jurisdiction under Section 176 Cr.P.C neither the Magistrate is called upon to hold an inquest nor the Magistrate appointed for holding an enquiry would be empowered to adjudicate upon the complaint which is evinced in the suicide note that the deceased was committing suicide on account of the conditions created by the persons mentioned therein. Such an adjudication as to whether abetment as envisaged under Section 107 IPC in case of suicide note, which would be per se admissible under Section 32 (1) of the Indian Evidence Act, would only be possible by a Court of law and, therefore, entire exercise which does not have any judicial ramification is clearly misconceived."
In the present case, there was no conflict qua the cause of death. The board of doctors, who had conducted the postmortem examination on the dead body of the deceased, had given a clear and specific finding that the cause of death was due to asphyxia as a result of ligature strangulation. The said cause of death was again Criminal Appeal No.530-DB of 2007 23 Criminal Revision No.1414 of 2007 reiterated by one of the doctors of the board on 9.2.2005. The enquiry conducted by the Magistrate is not binding and lacks judicial power. Thus, the fact that inquiry was not made by a magistrate qua the cause of death is not fatal to the prosecution case.
In the present case the appellants had tried to portray the incident as a case of suicide by hanging. As per the said theory, the death of the deceased had occurred in the bed room on the first floor and thereafter, the dead body was brought on the ground floor after removing the dupatta with which the deceased had allegedly committed suicide on the first floor.
A perusal of the photographs reveals that a tilted chair is lying on the bed. However, there are no creases on the bed cover spread on the bed to show that the chair had actually been kept on the bed by the deceased to commit suicide and the same had tilted after the deceased committed suicide. The bed cover spread on the bed is seen to have been spread on the bed in a neat condition without any creases. The deceased was 5' 7" tall. As per the written statement filed by appellant Kanwarpreet Singh, when he entered the room he saw his wife hanging in a slanting manner from the ceiling fan and her knees were touching the bed. Had the knees of the deceased been touching the bed, there was no occasion for her to have died due to hanging in view of her height. There was no occasion for appellant Kanwarpreet Singh to have brought the dead body to the ground floor as the deceased had already died by that time. The fact that the dupatta, with which the deceased had Criminal Appeal No.530-DB of 2007 24 Criminal Revision No.1414 of 2007 allegedly committed suicide, had been removed from her neck and the body had been shifted from first floor to ground floor shows that the appellants have tried to create evidence qua hanging by the deceased, whereas, in fact, it was a case of strangulation.
Further in the written statement filed by appellant Kanwarpreet Singh, it had been averred that his aunt Jatinder Kaur had stayed in their house when they had gone to Shimla and on their return to Amritsar, his father and mother had gone to drop his aunt to her house. The said plea is not substantiated on record as Jatinder Kaur has not appeared in the witness box to corroborate the said version. Further there was no occasion for the appellants to have dropped Jatinder Kaur to her house in the middle of the night. There is also nothing on record to substantiate the plea taken by appellant Kanwarpreet Singh in his written statement that husband of Jatinder Kaur was not well. It appears that the said plea was taken with a view to save appellants Harjinder Singh and Mukhwant kaur from conviction.
Thus, it is evident that all the appellants were present in the house at the time of occurrence and had committed the murder of the deceased by strangulating her. The deceased was a heavily built lady as is evident from her photographs and was 5' 7" tall. She could not have been strangulated by one person alone. It appears that all the accused in connivance with each other had strangulated the deceased. The dead body of the deceased was lying on the ground floor. The possibility cannot be ruled out that she was strangulated Criminal Appeal No.530-DB of 2007 25 Criminal Revision No.1414 of 2007 on the ground floor and later on the accused created the evidence on the first floor to take up the plea that it was a case of suicide by hanging.
Although, in the present case, appellant Harjinder Singh had informed the father of the deceased that his daughter was lying unconscious but that fact in itself would not lead to the inference that it was a case of suicide and not murder. It is possible that the accused were confident that they had been successful in creating the evidence qua suicide by hanging. Further, in any case, the accused were required to inform the parents of the deceased qua her death so that they could participate in her cremation.
Learned senior counsel has next submitted that the appellants had no motive to commit the murder of the deceased. The matrimonial relations between the deceased and her husband were cordial.
In a case based on circumstantial evidence, motive gains significance but in the present case, the fact that the appellants had no motive to commit the murder of the deceased cannot be said fatal to the prosecution case. The deceased has died an unnatural death in the house of the appellants. The appellants, with a view to explain the unnatural death of the deceased in their house, have portrayed it as a case of suicide by hanging. However, the said fact is not established on record. Although it is evident from the defence evidence that life insurance policy had been purchased in the name of the deceased and there was a joint account maintained by the Criminal Appeal No.530-DB of 2007 26 Criminal Revision No.1414 of 2007 deceased and her husband and their relations were cordial but there is nothing on record to suggest that the deceased was an ill tampered lady or was suffering from depression or had followed erratic behaviour. There was no occasion for the deceased to have committed suicide. It is difficult for the prosecution to establish motive in each and every case.
It has been held by the Apex Court in Sheo Shankar Singh vs. State of Jharkhand and another 2011 (2) RCR (Criminal) 634 as under:-
"The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, Criminal Appeal No.530-DB of 2007 27 Criminal Revision No.1414 of 2007 absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye- witnesses. See Shivaji Genu Mohite v. The State of Maharashtra, (1973) 3 SCC 219, Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of Uttar Pradesh v. Kishanpal and Ors. (2008) 16 SCC 73."
It has been held by the Apex Court in State through CBI vs. Mahender Singh Dahiya 2011 (1) RCR (Criminal) 706 as under:-
Upon consideration of the evidence on record, the High Court concluded as follows:-
"Bearing in mind the legal position emerging out of the said authorities and having regard to the totality of the facts and circumstances which can be said to have been established on record, it is not possible to infer any motive on the part of the appellant what Criminal Appeal No.530-DB of 2007 28 Criminal Revision No.1414 of 2007 to talk of a motive so strong to commit the crime. In assessing the evidence, the High Court was aware of the legal principles that absence of motive may not necessarily be fatal to the prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof (See Surinder Pal Jain Vs. Delhi Administration, 1993 (3) RCR (Criminal) 195: 1993 Supp.
(3) SCC 681 and Tarseem Kumar Vs. Delhi Administration), 1994 Supp. (3) SCC 367. We may also notice here the observations in Subedar Tewari Vs. State of U.P., 1989 (1) RCR (Criminal) 74: 1989 Supp (1) SCC 91, wherein it has been observed that:-
"The evidence regarding existence of motive which operates in the mind of an assassin is very often than (sic) not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no Criminal Appeal No.530-DB of 2007 29 Criminal Revision No.1414 of 2007 one else may know what gave birth to the evil thought in the mind of the assassin."
Again reiterating the role played by motive in deciding as to whether the prosecution has proved the case beyond reasonable doubt against an accused, this Court in the case of Suresh Chandra Bahari Vs. State of Bihar, 1994 (3) RCR (Criminal) 1: 1995 Supp. (1) SCC 80 held as under:-
"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime."Criminal Appeal No.530-DB of 2007 30
Criminal Revision No.1414 of 2007 In our opinion, the conclusion recorded by the High Court is in accordance with the aforesaid principles. Merely because the respondent objected to the behaviour of Namita towards her male friends at the birthday party of her sister Shiela would not be sufficient to hold that the appellant had the necessary motive to kill her. It is inconceivable that the respondent would have married Namita only for the purpose of committing her murder, that too on the very first night of their honeymoon. Both the trial court and the High Court, in our opinion, have correctly recorded the conclusion that it was in fact in the interest of the respondent that Namita had remained alive. The success of his very objective to remain permanently in England was dependent on the continuance of his marriage for at least another year.
24. We are also not much impressed by the submission of Mr. Malhotra that the simmering resentment which was caused by Namita's refusal to consummate the marriage would be sufficient to impel the respondent to commit her murder. In our opinion, the High Court has correctly concluded that the two letters Ext.CW-13 and Ex.CW-14 exchanged between Namita and Mahender would tend to show that respondent was in fact trying to make amends after the birthday party on 5th /6th April, 1979. There was no untoward incident thereafter. It is accepted by all that Criminal Appeal No.530-DB of 2007 31 Criminal Revision No.1414 of 2007 the marriage was duly registered on 26th May, 1979 and that the couple voluntarily left for the honeymoon.
25. The trial court upon examination of the entire evidence had in fact concluded that something had gone amiss in the hotel room occupied by Mahender and Namita on the night of 27th/28th May, 1979. If that be so, the High Court rightly concludes, that this fact alone would contradict the theory of respondent having any pre- meditated strategy or design for committing the murder of his wife. The High Court correctly concluded that it is highly improbable to comprehend that respondent had a predetermined mind or motive to cause the death of Namita on the honeymoon night itself at the first available opportunity of being in the company of the deceased in a closed room as suggested by the prosecution. Had the attitude of the parties been as suggested by the prosecution, they would not have agreed to a marriage followed by a honeymoon trip outside London. The High Court also noticed that there was nothing to suggest that Namita or her family members had apprehended any harm or threat to life of Namita at any stage till the couple left for the honeymoon on morning of 27th May, 1979. The High Court found it impossible to accept the prosecution theory that the respondent had married the deceased only with a view to do way with her to take revenge for her Criminal Appeal No.530-DB of 2007 32 Criminal Revision No.1414 of 2007 appalling behaviour at Shiela's birthday party. Had the respondent been so resentful, there was no question of the marriage being solemanised"
In the present case, the motive qua crime was in the minds of the appellants and hence, it was not possible for the prosecution to have established the same. Rather from the circumstances on record, it is established that the prosecution has been successful in establishing that it was a case of death by way of strangulation.
Learned senior counsel has further submitted that none from the neighbourhood had been joined by the investigating officer during investigation and this showed that the investigating officer had conducted tainted investigation. We are not convinced with the said argument raised by the learned senior counsel for the appellants. In the present case, the occurrence had taken place in the month of January in the middle of the night. The neighbours could have no occasion to know what was happening in the house of the appellants. Rather the appellants had created evidence to depict the occurrence as a case of suicide, whereas, the prosecution has been successful in establishing that it was a case of strangulation. The said fact is evident from the medical evidence on record.
The complainant at the time of lodging of the FIR had not stated that his daughter was being harassed on account of demand of dowry or that he had paid any cash amount to the appellants to satisfy their demand in this regard. The complainant, while Criminal Appeal No.530-DB of 2007 33 Criminal Revision No.1414 of 2007 appearing in the witness box, has made material improvements and has deposed qua payment of ` 50,000/- in cash to appellants Harjinder Singh and Kanwarpreet Singh on 3.1.2005 is concerned. So far as the factum of giving of a gold bracelet to appellant Kanwarpreet Singh and gold bangle to deceased Harneet Kaur on 3.1.2005, the same can be treated as gifts by the complainant to his daughter and son-in-law on account of marriage of his son.
PW-6 Puneet Pal Singh has deposed that in October 2004, his father had given a sum of ` 80,000/- to appellant Kanwarpreet Singh. However, the said fact is not corroborated by the complainant while appearing in the witness box as PW-5.
The fact that PW-6 had given ` 50,000/- to appellant Kanwarpreet Singh, when he had picked up his sister from Chandigarh and payment of ` 50,000/- to appellants Harjinder Singh and Mukhwant Kaur is also not substantiated from record. There is nothing on record to suggest that the said amounts had been withdrawn by the complainant from the bank to pay the same to the appellants or that the said amounts had been received by the complainant from any other source for payment to the appellants.
In order to establish an offence under Section 304-B IPC, the following ingredients are liable to be satisfied:-
"1. that the death of the woman took place due to burns or the bodily injuries or otherwise than under normal circumstances.
2. that such death had occurred within seven years of Criminal Appeal No.530-DB of 2007 34 Criminal Revision No.1414 of 2007 her marriage.
3. the victim was subjected to cruelty or harassment by her husband or any relative of her husband and such cruelty or harassment should be for or in connection with demand of dowry."
However, in the present case, although the death of the deceased had occurred within seven years of her marriage and in the house of her in-laws but the same cannot be described as a dowry death. Rather it is a clear cut case of culpable homicide amounting to murder. The trial Court erred in holding that offence under Section 304-B stood established in the present case. However, the trial Court rightly convicted and sentenced the appellants for commission of offence under Section 302 read with Section 34 IPC.
The present case rests on circumstantial evidence. It has been held by the Apex Court in Gamparai Hrudayaraju vs. State of A.P. AIR 2009 Supreme Court 2364 as under:-
"15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
16.In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the Criminal Appeal No.530-DB of 2007 35 Criminal Revision No.1414 of 2007 evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
17.A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
Criminal Appeal No.530-DB of 2007 36
Criminal Revision No.1414 of 2007 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a
conclusive nature and tendency;
(4) they should exclude every possible
hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In the present case, the prosecution has been successful in bringing on record the chain of circumstances which lead to the inference of guilt of the appellants and negates their innocence. The deceased has died an unnatural death in the house of the accused. As per the medical evidence, the cause of death of the deceased Criminal Appeal No.530-DB of 2007 37 Criminal Revision No.1414 of 2007 was due to asphyxia as a result of ligature strangulation. The story put forth by the appellants that it was a case of suicide is belied by the medical evidence. The appellants had although tried to portray that the deceased was brought from the first floor to the ground floor with a view to save her as she had committed suicide but they had not made any effort to call a doctor to the spot or take the deceased to the hospital for treatment. A perusal of the injuries on the person of the deceased lead to the inference that the appellants in connivance with each other had committed the murder of the deceased by strangulating her. The appellants had rather tried to create evidence to show the occurrence as a case of suicide by the deceased. Thus, in the present case, the trial Court had rightly convicted and sentenced the appellants for commission of offence under Section 302 read with 34 IPC.
Accordingly, the appeal is dismissed.
In view of the dismissal of the criminal appeal, learned counsel for the petitioner has submitted that he does not press the revision petition and the same is disposed of accordingly.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
March 27, 2012
anita