Punjab-Haryana High Court
Gajraj Singh And Another vs State Of Haryana on 16 December, 2008
Author: S.S. Saron
Bench: S.S.Saron, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 810-DB of 2005
.....
Date of decision:16.12.2008
Gajraj Singh and another ........Appellants
Versus
State of Haryana .......Respondents
.....
CORAM: HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh,
Advocate for the appellants.
Mr. H.S. Sran, Additional Advocate General, Haryana for the
respondent-State.
.....
S.S. Saron, J.
This appeal has been filed by the appellants Gajraj Singh and his wife Phoolwati against the judgment dated 4-10-2005 and order of sentence dated 6-10-2005, whereby both the appellants have been held guilty for the offence punishable under Section 304-B and 498-A of the India Penal Code (`IPC' - for short) and sentenced to undergo rigorous imprisonment for two years; besides, pay a fine of Rs.2,000/- and in default of payment of fine to undergo rigorous imprisonment for six months for the offence under Section 498-A IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.3,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years for the offence under Section 304-B IPC. Both the sentences of imprisonment have been ordered to run con-currently. In terms of the order dated 4-10-2005 passed by the learned Additional Sessions Judge, Fast Track Crl. Appeal No. 810-DB of 2005 [2] Court, Gurgaon, Narender and Reena who are brother and brother's wife of the husband of Sulochna (deceased) have been acquitted.
The FIR No. 113 dated 31.05.2004 (Exhibit PA/1) was registered on the statement (Exhibit PD) of Krishan Kumar, complainant (PW-5) brother of the Sulochna (deceased). He stated that they had solemnized the marriage of their sister Sulochna (deceased) aged 23 years on 16-02-2002 with Virender Singh son of Gajraj Singh resident of Village Nawada Fatehpur as per Hindu rites and ceremonies. They had on the marriage of their sister spent beyond their capacity. In the marriage they had given Rs.51,000/- in cash, motor cycle, furniture etc. and complete articles. Even then his sister, Sulochna (deceased) used to come to their home and say that her in-laws were not happy with the dowry which had been given and they were demanding more dowry. About 10 months earlier the complainant Krishan Kumar (PW-5) and his father Mahinder Singh (PW-6) accompanied by respectables of the village in the form of a panchayat went to village Nawada. All of them made the in-laws of his sister understand that their demands would be fulfilled at the appropriate occasion. However, the in-laws of his sister still taunted her by saying that they were getting offers with car for the marriage of Virender Singh, husband of Sulochna (deceased), and the sister of the complainant was being harassed by her mother in-law Phoolwati wife of Gajraj Singh (appellant No.2), father in-law Gajraj Singh (appellant No.1), Narender Singh brother of Virender Singh (since acquitted) and Reena (since acquitted) wife of Narender Singh. Sulochna(deceased), sister of the complainant from their house had left for her in-laws house in Village Crl. Appeal No. 810-DB of 2005 [3] Nawada only about 20 days earlier. On the date of the occurrence i.e. 31.5.2004 at about 10.00 a.m. a telephone call was received from Nawada in the house of their neighbour in the village that sister of the complainant had suffered an electric shock and they were asked to come there. The complainant Krishan Kumar (PW-5) along with his uncle Niranjan Singh son of Dharam Singh Ahir resident of Palra and another uncle Brahm Dutt (PW-2) son of Hardwari Lal Ahir resident of Kheri Khumar reached at the house of the in-laws of his sister. There they found that Sulochna (deceased), sister of the complainant (PW-5) had already died and ash was there on her entire body and there was a ligature mark on her neck. Krishan Kumar (PW-5) complainant had a complete suspicion that his sister had been murdered by Gajraj Singh (appellant No.1), Narender Singh (since acquitted), Reena (since acquitted) and Phoolwati (appellant No.2) by hanging her or his sister was so much compelled on account of demand of dowry that she hanged herself. The complainant left his uncles Niranjan Singh and Brahm Dutt (PW-2) in the village with the dead body at the spot and was coming to lodge a report at the Police Station that Preet Singh, ASI (PW-7), Police Station Bilaspur met him on the way and recorded the statement of Krishan Kumar, complainant (PW-5) on 31.5.2004. It is recorded by Preet Singh, ASI (PW-7) that he accompanied by other police official namely Constable Manoj Kumar No.1781 and EHC Rajbir Singh No.357 were on patrol in IMT, Manesar and were present on the road of Village Nawada Naharpur. At that time, Krishan Kumar, complainant (PW-
5) met them and got his statement recorded. The statement was read over to him and explained to him who after admitting the same as correct signed Crl. Appeal No. 810-DB of 2005 [4] below the same in English. From the statement that had been recorded a prima facie case punishable for the offences under Sections 498-A/304-B read with Section 34 IPC were found to be made out. The writing in original was sent for registration of FIR through EHC Rajbir Singh No.357. After registering the FIR, the FIR number was asked to be intimated; besides, special reports were asked to be sent to the higher officers. Accordingly, FIR (Exhibit PA/1) on the basis of the statement (Exhibit-PD) was registered by Umed Singh ASI.
ASI, Preet Singh (PW-7), thereafter, conducted investigation in the case. Photographs were got taken. SI/SHO Sanjeev Kumar had also come at the spot and took up the investigation in the case. Then on 5.06.2004 ASI Preet Singh (PW-7) accompanied by Sanjeev Kumar, SI, SHO (PW-10) reached village Nawada where Gajraj Singh(appellant no. 1), Phoolwati (appellant no. 2) and Reena were arrested by SI/SHO Sanjeev Kumar in the presence of ASI Preet Singh (PW-7). During investigation Gajraj Singh (appellant No.1) produced one rassi (rope). It was taken into possession vide memo (Exhibit-PE). On 6.6.2004, Gajraj Singh (appellant No.1) produced the dowry articles which were taken in possession by Sanjeev Kumar, SI/SHO (PW-10) in presence of ASI Preet Singh (PW-7), in pursuance of memo (Exhibit PF). Thereafter, on 31.7.2004, Narender Singh (since acquitted) was arrested from from the place of his posting viz. Sambha (Jammu) and brought to the Police Station Bilaspur. After completion of investigation in the case the police filed the charge report (challan) in terms of Section 173 of the Code of Criminal Procedure Code (`Cr.P.C.' - for short). The learned Judicial Magistrate, Gurgaon, vide order Crl. Appeal No. 810-DB of 2005 [5] dated 4.09.2004 observed that the accused had prima facie committed an offence punishable under Section 304-B, 498-A read with Section 34 and 120-B of the IPC. Since, the offence punishable under Section 304-B of IPC was exclusively triable by the Court of Session, the case was committed to the said Court. The learned Additional Sessions Judge to whom the case was assigned vide order dated 26.10.2004 charge sheeted the appellants as well as Narender (since acquitted) and Reena (since acquitted). It was alleged that Gajraj Singh (appellant No.1) being the father in-law, Phoolwati (appellant No.2) being the mother in-law, Narender being the brother-in-law and Reena being the sister-in-law of Sulochna (deceased) in furtherance of their common intention committed cruelty and harassed (Sulochna) for bringing inadequate dowry and thereby committed an offence punishable under Section 498-A read with Section 34 of IPC. Secondly, Gajraj Singh (appellant No.1) being the father in-law, Phoolwati (appellant No.2) being mother in-law, Narender being brother in-law and Reena being sister in-law of Sulochna in furtherance of their common intention subjected her to cruelty and harassment in connection with demand of dowry during the period from 16.2.2002 the date of the marriage till the date of her death, which resulted in her death otherwise than under normal circumstances within seven years of her marriage and thereby committed an offence under Section 304-B read with Section 34 of the IPC. The accused pleaded not guilty to the charges and claimed trial.
The prosecution in order to prove its case, examined as many as 10 witnesses besides submitted documentary evidence. The statements of the accused in terms of Section 313 Cr.P.C were recorded. Gajraj Singh Crl. Appeal No. 810-DB of 2005 [6] (appellant No.1), Phoolwati (appellant No.2) in their respective statements took the stand that they had been falsely implicated on unfounded suspicion. They were not present at their house but were in their fields. Their sons Narender and Virender were serving in the Army. Sulochna (deceased) was the mother of one daughter and prior to her death she used to remain upset and under tension. She wanted to abort the child due to fear of giving birth to another female child. She committed suicide and left the letter (Exhibit D1) which was later on found in a room. She was also upset as she could not remain with her husband at the place of his posting. On 30.05.2004, Narender their son had come from his service and at that time his wife Reena was at her parental home and in order to bring her back Narender had also gone on 30.5.2004 and returned back on the next day at about 2:00 p.m. Their son Virender was on duty on 30.5.2004. They never harassed or demanded any dowry.
In defence, Tejram Yadav, Teacher, PTI, Shishu Kalyan High School, Village Nawada Fatehpur, District Gurgaon (DW-1), Pritam Singh, Serviceman resident of Village and Post Office Tikri, District Gurgaon (DW-2) father of Reena wife of Narender (since acquitted) and Om Parkash, Naib Subedar, 842, Field Workshop Company EME c/o 56 APO (DW3) were examined. The learned trial Court after considering the evidence and material on record has convicted and sentenced Gajraj Singh (appellant No.1) and Phoolwati (appellant No. 2), however, Narender Singh and Reena, younger brother and his wife respectively have been acquitted.
The appellants, as already noticed were sentenced to undergo rigorous imprisonment for life for the offence under Section 304-B IPC Crl. Appeal No. 810-DB of 2005 [7] besides sentence to undergo rigorous imprisonment for two years for the offence under Section 498-A IPC and also imposed fine of Rs.3,000/- and Rs.2,000/- each for the respective offences. The said judgment and order of the learned trial court to the extent that the appellants have been convicted and sentenced is assailed by them in this appeal.
Shri Baldev Singh, Senior Advocate with Shri Deepinder Singh, Advocate appearing on behalf of the appellants has contended that the appellants had been falsely implicated and from the evidence and material on record no case whatsoever in respect of the offences under sections 304-B and 498-A IPC is made out against them. It is submitted that the prosecution case is based on material improvements which have been made by the prosecution witnesses during the trial of the case. It is submitted that the improvements are not liable to be taken into consideration to convict the appellants. A reference has been made to the deposition of Brahm Dutt (PW-2), an uncle of Sulochna (deceased), Krishan Kumar (PW-5) brother of the deceased on whose statement (Exhibit PD), FIR (Exhibit PA/1) was registered and also Mahinder Singh (PW-6), father of the Sulochna (deceased). It is submitted that in fact the allegation of demand of dowry at the most can be said to be against Virender Singh the husband of the deceased Sulochna who was not sent up for trial. It is further submitted that Sulochna (deceased) in fact committed suicide, which is evident from the suicide note (Exhibit D-1) which even otherwise does not mention anything as regards the demand of dowry or cruelty so as to record a finding of guilt for the offences under Sections 304-B and 498-A IPC. The finding of suicide, it is submitted, is also evident from the fact Crl. Appeal No. 810-DB of 2005 [8] that Dr. N.K. Arora (PW-9) has opined the cause of death to be asphyxia by ligature strangulation. However, the hyoid bone was found intact. Besides, the ligature mark was oblique and not horizontal. Therefore, it is submitted that it was a case of hanging and not strangulation. Thus, the finding and conclusion of the trial court are liable to be set aside.
In response, Shri. H.S. Sran, learned Additional Advocate General appearing for the State has submitted that the prosecution has proved its case against the appellant in all material aspects and both the appellants have rightly been convicted and sentenced for the offences that have been attributed to them. It is submitted that a perusal of the suicide note (Exhibit D-1) would show that Smt. Sulochna (deceased) was being harassed and subjected to cruelty in connection with demand for dowry. It is submitted that the prosecution witnesses that have been examined have clearly proved and established the case against the appellant. Therefore, it is submitted that findings of the conclusions reached at by the learned trial court are liable to be maintained and upheld.
We have given our thoughtful consideration to the contentions of the learned counsel, appearing for the parties and with their assistance have gone through the record of the case. The FIR (Exhibit PA/1) was registered on the statement (Exhibit PD) of Krishan Kumar (PW-5) which was recorded by ASI Preet Singh (PW-7). Krishan Kumar (PW-5) in his deposition in Court has reiterated his version as made by him before the police. It is deposed by Krishan Kumar(PW-5) that he had only one sister, namely, Sulochna (deceased). She was married to Virender Singh on 17.2.2002 according to Hindu rites and ceremonies. All dowry articles were Crl. Appeal No. 810-DB of 2005 [9] given at the time of marriage even beyond their status. A sum of Rs.51,000/- was paid in cash along with motor cycle and furniture etc. After 4-5 days of the marriage Krishan Kumar(PW-5) visited the matrimonial home of Sulochna (deceased) and she told him that the accused person including Virender were demanding a car by way of dowry. They were taunting her that a car was offered by others before marriage of Virender (husband of the deceased). About 10 months earlier to the occurrence, they had taken a panchayat which consisted of Krishan Kumar (PW-5) himself, Mahender Singh (PW-6) his father, Brahm Dutt (PW-2) his uncle, Niranjan his uncle, Sohan Lal his grandfather and Gambhir his cousin. They had gone to the matrimonial home of Sulochna (deceased). They spoke to the accused persons and made them to understand and behave in a nice way with Sulochna (deceased) and not to tease her on account of demand of a car and if all goes well the demand would be met on the birth of some child. Despite all this, the behaviour of the accused persons, it is stated, did not change and they continued to harass Sulochna (deceased), sister of the complainant on account of demand of dowry. Later on all the accused except Virender strangulated his sister, Sulochna (deceased) at the instance of Virender and she then died on account of demand of dowry. His sister had visited their house 20 days prior to the occurrence. At that time she had told all of them i.e. Krishan Kumar (PW-5) and his mother that the accused persons were harassing her and demanding a car on account of dowry. She had stayed for about 2-3 days at their house and they had gone back to her matrimonial home. On 31.05.2004, a telephone message was received from Narender at their house which was to the effect that Sulochna Crl. Appeal No. 810-DB of 2005 [10] (deceased) had got an electric shock from the fridge and they should reach immediately to see her. Thereafter, Krishan Kumar (PW-5) took his uncle Niranjan and Brahm Dutt (PW-2), his father's elder brother, and reached at the matrimonial home of Sulochna (deceased) at village Nawada Fatehpur at about 2.30 p.m. On reaching the house of the accused, Krishan Kumar (PW-5) found Sulochna(deceased) lying on the floor having ash on her body. They also noticed ligature mark on the neck of Sulochna (deceased) and from this they came to know that she was killed by strangulation. He then went to the police which came at the spot and the formalities were completed. He made his statement (Exhibit PD) before the police. Krishan Kumar (PW-5) was cross-examined. He was confronted with his statement (Exhibit PD) as regards demand of car by way of dowry and also his statement that they were taunting his sister Sulochna (deceased) that car was offered by others before marriage. It is mentioned that in his statement (Exhibit-PD) this was not so recorded. He was also confronted as regards specific names of Niranjan, Brahm Dutt, Gambhir and himself being members of the Panchayat not being recorded in his statement (Exhibit-PD). The specific names were not mentioned in the statement (Exhibit-PD). It is also stated that he had stated before the police that his sister visited their house 20 days prior to the occurrence and she had told them about the demand of dowry, harassment etc. and after staying for 3-4 days she went back to Village Nawada. He was confronted with his statement (Exhibit PD) wherein it was not so recorded. He also deposed that he had stated before the police that on 31-5-04 they had got a telephonic message from Narender that Sulochna (deceased) had got electric shock through a fridge. Crl. Appeal No. 810-DB of 2005 [11] He was confronted with his statement (Exhibit-PD) wherein the name of Narender and fridge are not mentioned. He also deposed that he had stated before the police that on arrival they noticed ligature mark on the neck of Sulochna (deceased) and that she was strangulated. He was confronted with his statement (Exhibit-PD) wherein strangulation was not recorded. It was deposed by him that he did not state before the Police that his sister was compelled to commit suicide. He was confronted with his statement (Exhibit-PD) wherein it is so recorded at portion `A to A'. His sister, it is stated, was pregnant at the time of death. She delivered a female child before her death, which child was with the accused persons. He denied the suggestion that Sulochna wanted to abort the child many times or that she did not want another female issue. It was also accepted by him that he identifies the hand-writing of his sister on the letter (Exhibit-D.1). Thereafter, it was observed by the trial Court that after some interference from the other side, the witness stated that he was not sure about her hand- writing. It was further stated by him that he did not know the contents of (Exhibit-D.1). It is stated that it was incorrect to suggest that (Exhibit-D.1), was seen by all of them and they came to know that Sulochna (deceased) had committed suicide on her own. Mahender Singh (PW-6) is the farther of the deceased Sulochna. He has deposed on the same lines as the complainant-Krishan Kumar (PW-5).
According to the learned Senior Counsel appearing for the appellants, the prosecution witnesses have inflated their case and Mahender Singh (PW-6) has falsely implicated the appellants. It may be noticed that Mahender Singh (PW-6) in cross-examination, stated that the DSP recorded Crl. Appeal No. 810-DB of 2005 [12] his statement on 1.6.2004. It is deposed by him that he stated before the Police that all the accused used to harass his daughter Sulochna on account of demand for dowry. He was confronted with his statement (Exhibit-DA) wherein the names of accused except Virender are not mentioned. It is also deposed by Mahender Singh (PW-6) that he did not state before the Police that seven days after marriage Sulochna visited their house and said that the accused were harassing and demanding a car. It is further stated in cross- examination by Mahender Singh (PW-6) that he was present at his house at Jhajjar when he received a telephone from his daughter that Virender was demanding Rs.2 Lacs by way of dowry. He had talked to Virender after he spoke to Sulochna and a demand of Rs.2 Lacs was made at the same time. Virender was in Village Nawada at that time. However, he could not tell the date, month and year when he received a telephonic message regarding the demand of Rs.2 Lacs. He denied the suggestion that there was no telephone either from Sulochna or from anyone else and that there was no demand of Rs.2 Lacs ever made by Virender. He stated before the Police that a demand was made for purchase of a car. He was confronted with his statement (Exhibit-DA) made before the Police wherein the demand for a car is not mentioned. It is deposed that he told the Police that 10 months prior to the occurrence he had taken a Panchayat to the house of the accused persons. He was confronted with his statement (Exhibit-DA) wherein "10 months" is not mentioned. It is further deposed that he had studied upto 10th class and Sulochna had also studied upto 10th class. He could identify the hand-writing of his daughter Sulochna. He had seen the letter (Exhibit-D.1) which, it is stated, was in the hand (writing) of his daughter. Crl. Appeal No. 810-DB of 2005 [13]
Brahm Dutt (PW-2) has stated that Sulochna (deceased) was the daughter of his cousin brother Mahender Singh (PW-6). She was married to Virender Singh on 17.2.2002 according to Hindu rites and ceremonies. All dowry articles were given at the time of marriage which was performed nicely. It is alleged that Sulochna had complained regarding demand for dowry by her in-laws who were demanding a car. She named the accused Gajraj Singh (appellant No.1), Phoolwati (appellant No.2), Narender Singh, Virender Singh and Reena Devi, who were harassing her. About 10 months earlier to the occurrence a dispute had occurred and the accused had demanded a car at that time. Brahm Dutt (PW-2) himself, Mahender Singh (PW-6), Niranjan Singh and Gambhir Singh had gone to the matrimonial home of Sulochna. They talked to the accused persons and made them agree that the demand would be met at the time of birth of child in future. Despite this, the behaviour of the accused did not change and they continued to harass Sulochna. Brahm Dutt (PW-2) was cross- examined. It is deposed by him that he stated before the Police that the accused were demanding a car by way of dowry. He was confronted with his statement (Exhibit-PB) made before the Police wherein it was not so recorded It is also deposed that he stated before the Police that ten months prior to the occurrence a dispute had occurred and the accused then demanded a car. At that time, he (Brahm Dutt) along with Mahender Singh (PW-6), Niranjan Singh etc. had gone to the matrimonial home of Sulochna. He was confronted with his statement (Exhibit-PB) wherein the names are not mentioned.
From the statements of complainant-Krishan Kumar (PW-5), Crl. Appeal No. 810-DB of 2005 [14] Mahender Singh (PW-6) and Brahm Dutt (PW-2), it is quite evident that during the investigation of the case the said witnesses had not stated before the Police that the accused had raised a demand for dowry of a car. The allegation that there was a demand for car by the in-laws of Sulochna (deceased) has been raised while deposing in Court during the trial of the case. It may, however, be noticed that Krishan Kumar (PW-5) in his statement (Exhibit-PD) before the Police stated that the in-laws of Sulochna (deceased) were repeatedly saying that for the marriage of Virender Singh, they were getting offers with car. However, during investigation it has not been specifically stated that there was a demand for car. In Hans Raj v. State of Haryana, 2004 (2) RCR (Cr.) 58, it was observed by the Supreme Court that where some facts are not mentioned in FIR or during investigation and improvements are made at the time of trial, the facts could not be taken into consideration to convict the accused. The question as regards the demand of a car in the present case is indeed an inflated version which was not alleged by the prosecution witnesses during investigation of the case.
It may also be noticed that the appellants have set-up a suicide note (Exhibit-D.1) which was recorded by Sulochna (deceased) in her hand- writing. The hand-writing of the suicide note (Exhibit-D.1) was accepted by Krishan Kumar (PW-5) in his cross-examination. It is after some interference from the other side that Krishan Kumar (PW-5) stated that he was not sure about the hand-writing. A note regarding this has been specifically recorded by the learned trial Court while recording the deposition of Krishan Kumar (PW-5). In any case, Mahender Singh (PW-6) Crl. Appeal No. 810-DB of 2005 [15] has clearly stated that he had seen the letter (Exhibit-D.1) which was in the hand-writing of his daughter. The translation of the suicide note (Exhibit- D.1) reads as under:-
"Love you my Jaan Virender (Vinu).
I have not loved anyone else except you. Some incidents had occurred which I have already disclosed to you. It is true that I do not feel like leaving you and going but I cannot now tolerate any further. When you have not cared for me then who else will. You have never given me the status of a wife and neither have you ever heard me correctly. What you have done and what your mother had done is all correct, however, I have tolerated for two years now I am unable to do so any more. In your eyes I always had fault and remains so. So without saying anything more after my going your mother would get you a wife who is more beautiful and cultured. We pray to God that you live happily with her. By carrying a child I have developed some laziness and irritable behaviour. However, you did not understand anything about my health and my problem but you increased them. These things can be said to those who are one's own otherwise others in fact make fun of you, therefore, I have stopped telling anyone about my problem. Whatever has happened and whatever will happen is all right. One does not blame anyone when one's own luck is bad. I am sorry my Jann. In this life I will not be able to go along with you. But I pray to the God that in the next life you only meet me as my husband. Crl. Appeal No. 810-DB of 2005 [16]
I love you my Jaan very much."
A reading of the above suicide note shows that there is no allegation of any demand for dowry. Neither has it been alleged by Sulochna (deceased) that she was harassed in connection with demand for dowry. The suicide note (Exhibit-D.1) primarily raises grievances that husband of Sulochna did not understand her and her problems and she could not say this to anyone except her husband who did not understand; besides, she felt harassed which she could not tolerate any further. In the afore-noticed circumstances, it may be noticed that the demand for dowry has been inflated during the course of trial; besides, there is no allegation of demand for dowry in the suicide note (Exhibit-D.1) of Sulochna, the hand-writing of which has been admitted by her brother Krishan Kumar (PW-5) and also by her father Mahender Singh (PW-6).
A reference may also be made to the deposition of Dr. N.K. Arora (PW-9) who had conducted the post-mortem examination of Sulochna (deceased) along with Dr. Sanjay Narula as member of the Board. On post- mortem examination, it has inter alia been observed by Dr. N.K. Arora (PW-
9) as follows:-
"She was average built woman wearing greenish salwar kameej and white Baniyan, her eyes were semi open, mouth closed, sub conjunctiva haemorrhages were present in both eyes. Rigormortis was present post mortem staining was present on the back. One abrasion mark was present on the forearm right side of size 4 cm x 0.2 cm situated 2 cm below elbow. Ligature Mark: There was continuous circular ligature mark over the neck 26 cm in length. It was interrupted on the Crl. Appeal No. 810-DB of 2005 [17] posterior left side. Width was 1 cm, the mark was situated 8 cm below the chin. 7 cm below right angle of the mandible, 6 cm below the left angle of the mandible. It was 10 cm above the xiphisternal notch on dissection subcutaneous haemorrhages were present. There were haemorrhage in trachea muscles in the ligature line. It was pale in the center. Right superior cornu of thyroid cartilage was fractured. Hyoid bone was intact. There was froth and congestion in trachea.
On examination of organs of generation uterus was enlarged to 12 weeks size, pregnancy was present. In our opinion, the death in this case was due to asphyxia caused by ligature strangulation. All injuries were anti mortem in nature and sufficient to cause death."
In cross-examination, it is stated that it was wrong to suggest that asphyxia may be the result of hanging because the ligature mark was not oblique in nature. The doctor agreed with the observation of Dr. Modi that in case of strangulation there is fracture of Hyoid bone. It is also accepted as correct that as per Dr. Modi in case of strangulation the saliva should not be there. The possibility of an abrasion on the right forearm, it it stated, cannot be ruled out as a result of fall. It may be noticed that in Modi's Medical Jurisprudence & Toxicology (Twenty-second Edition) (at pages 269-270) difference between hanging and strangulation has been mentioned in a tabulated form. As regards hanging, it is mentioned that it mostly suicidal and as regards strangulation it is mentioned as mostly homicidal. Dr. N.K. Arora (PW-9) has opined the cause of death to be due to asphyxia Crl. Appeal No. 810-DB of 2005 [18] caused by ligature strangulation. Some of the differences between `hanging' and `strangulation' as given in Modi's Medical Jurisprudence & Toxicology may be noticed as follows:-
Hanging Strangulation 1. Mostly suicidal. 1. Mostly homicidal.
3. Saliva - Dribbling out of the 3. Saliva - No such dribbling. mouth down on the chin and chest.
4. Neck - Stretched and elongated 4. Neck - Not so.
in fresh bodies.
7. Ligature mark -Oblique, non- 7. Ligature mark - Horizontal or continuous placed high up in the transverse continuous, round the neck between the chin and the neck, low down in the neck below larynx, the base of the groove or the thyroid, the base of the groove or furrow being hard, yellow and furrow being soft and reddish. parchment-like.
12. Fracture of the larynx and 12. Fracture of the larynx and trachea - Very rare and that too in trachea - Often found also hyoid judicial hanging. bone.
As already noticed in cross-examination it is stated by Dr. N.K. Arora (PW-9) that he agrees with the observation of Dr. Modi that in case of strangulation there is fracture of Hyoid bone. As per Dr. Modi in case of strangulation there is often fracture found of Hyoid bone. It is also accepted that in case of strangulation saliva should be there. Besides, the doctor (PW-9) has mentioned that there was haemorrhage in trachea muscles in the ligature line, which means there was no fracture of trachea and in the case of strangulation Dr. Modi has observed that there is a fracture of trachea and in case of hanging fracture of trachea is very rare and that too in judicial hanging. Therefore, the parameters that have been given are more suggestive of a case of hanging rather, than that of strangulation. In terms of the inquest report (Ex.PH) against the column 12 as to in what manner or what weapon or instrument such marks or injuries of violence appear to Crl. Appeal No. 810-DB of 2005 [19] have been committed, it is mentioned; "strangulation. Ligature on the neck." Column No.13 as to was there any rope or other article round the neck or any mark of ligature on the neck, it is mentioned; "strangulation with the help of rope as was told." In terms of the marginal note it is mentioned that Mark-A in the site plan is the place where the deceased Sulochna was lying on the double bed of the verandah of the house. The dead body was found on the double bed and it has not been clearly brought out as to whether it is a case of hanging or strangulation. The medical evidence is normally corroborative of the other circumstances. Besides, the complainant Krishan Kumar (PW-5) in his statement (Exhibit-PD) made before the Police does not state it to be a case of strangulation and he has stated that his sister Sulochna was killed by hanging (Phansi Laga Ke Mara Hai) or his sister was compelled so much for dowry that she hanged herself. He does not state it to be a case of strangulation. In the present case the facts and circumstances lean more to a case of suicide in view of the suicide note (Exhibit-D.1), the inflated version of demand for car by the prosecution witnesses i.e. Krishan Kumar (PW-5), Mahender Singh (PW-6) and Brahm Dutt (PW-2); besides the medical evidence being not too clear. Therefore, it would be unsafe to record a finding of guilt on the basis of evidence and material on record and it would be more appropriate to give the benefit of doubt to the appellants.
Accordingly, the appeal is allowed and the judgment and order of the learned trial Court is set aside and the appellants are acquitted of the offences attributed to them.
(S.S. SARON)
Crl. Appeal No. 810-DB of 2005 [20]
JUDGE
16th December, 2008. (SABINA)
SKaushik JUDGE