Jagdish & Ors. vs State
2010 Latest Caselaw 1128 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: February 01, 2010
                              Judgment delivered on : February 26, 2010


+     CRIMINAL APPEAL NO.231/2000

      JAGDISH & ORS.                                  ....APPELLANTS
                   Through:          Mr. C.L. Gupta, Advocate

                     Versus

      STATE                                           ..... RESPONDENT
                          Through:   Mr. Manoj Ohri, Advocate


      CORAM:
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.    Whether Reporters of local papers
      may be allowed to see the judgment?                  Yes

2.    To be referred to the Reporter or not ?              Yes
3.    Whether the judgment should be
      reported in Digest ?                                 Yes


AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

18.02.2000 in Sessions Case No.178/97 arising out of FIR No.127/95

Police Station Mangol Puri, convicting the appellants Jagdish, Laxmi

Narain (since deceased) and Ram Piary (since deceased) for the

offences punishable under Sections 498A IPC and 302 IPC read with

Section 34 IPC and consequent order on sentence dated 21.02.2000.

2. The appeal was jointly preferred by all three of them. However,

during the pendency of the appeal, appellants Laxmi Narain and Ram

Piary expired, as such, the appeal as regards them abated.

3. Briefly stated, case of the prosecution is that on 28.02.95 at

about 7:05 pm, an information was received from PCR at P.S. Mangol

Puri that one man has killed his wife at H-733, Mangol Puri, Delhi. The

said information was recorded as DD No.18A and copy thereof was

entrusted to SI Ishwar Singh (PW16) for verification, who proceeded for

the spot of occurrence along with Constable Kartar Singh (PW7). On

reaching the spot of occurrence, i.e., first floor of the house, SI Ishwar

Singh found the dead body of the deceased Kamlesh @ Kamla lying

there. No family member of the deceased was available at the spot

but many neighbours were present. On inquiry, SI Ishwar Singh, PW16

found that the death of Kamlesh @ Kamla had occurred under

suspicious circumstances, so he conveyed the information to the SHO,

P.S. Mangol Puri and also tried to contact the SDM of the area, but

could not make contact with him. He summoned a private

photographer and got the spot of occurrence photographed from

various angles. In the meanwhile, the SHO contacted the SDM, who

directed him to remove the dead body to the dead house after marking

the outlines of the dead body and also to preserve the scene of crime.

4. On the same night at around 12 O'clock, SI Ishwar Singh, PW16

reached at the residence of Sh. Virender Kumar (PW8), the then SDM,

Punjabi Bagh along with the relatives of the deceased and the SDM,

Punjabi Bagh recorded the statement of PW5 Lali, the mother of the

deceased, Ex.PW5/A and directed the police to register an FIR and

investigate the case in accordance with law vide his endorsement

Ex.PW8/A. SI Ishwar Singh sent said statement of PW5 Lali along with

the endorsement of the SDM and his own endorsement Ex.PW16/A to

the Police Station for the registration of the case. On the basis of the

said statement, formal FIR was registered at P.S. Mangol Puri. The

SDM also recorded statements of PW1 Bimla, sister of the deceased

and PW2 Madan Lal, father of the deceased, in the morning of 01.03.95

at around 10:00 am.

5. On 01.03.95, SI Ishwar Singh, PW16 conducted the personal

search of the dead body in presence of the mother of the deceased

and the jewellery found on the person of the deceased was removed

and taken into possession vide memo Ex.PW9/A. The dead body was

sent to the dead house through Constable Kartar Singh and the room

in which the dead body was found was locked and a Constable was left

at the spot to preserve the scene of crime.

6. Dr. K. Goyal, PW6 conducted post mortem on the dead body. He

found nine external injuries on the body. In the opinion of Dr. K. Goyal,

PW6 all the injuries were ante mortem in nature, caused by blunt force

during the process of strangulation. The Doctor opined that the cause

of death was asphyxia consequent to strangulation and he fixed the

time of death as approximately twenty hours prior to the

commencement of post mortem examination. The Investigating

Officer also prepared the site plan of the spot, recorded the statements

of the witnesses and on completion of the formalities of investigation,

he submitted the challan against the appellants.

7. The appellants, after being heard, were charged for the offences

punishable under Section 302 read with Section 34 IPC and Section

498A read with Section 34 IPC. All the three appellants pleaded

innocence and claimed to be tried.

8. In order to prove the guilt of the appellants, prosecution

examined 18 witnesses. The important witnesses however are PW1

Bimla, sister of the deceased; parents of the deceased namely, Madan

Lal PW2 and Lali PW5; to some extent, the testimony of autopsy

surgeon PW6 Dr. K.Goyal and PW8 Sh. Virender Kumar, the then SDM,

as also the Investigating Officer SI Ishwar Singh is also relevant.

9. PW1 Bimla is claimed to be the eye witness to the occurrence.

She is also a witness to establish the charge under Section 498-A IPC.

She stated in the Court that she and her sister Kamlesh (deceased)

were respectively married to two brothers Laxmi Narain (deceased

convict) and the appellant Jagdish on 22.02.92. After marriage, they

went to their matrimonial home and stayed there for about 4/5 days

and, thereafter, returned back to their parental house. She deposed

that during those 4/5 days, she was beaten by her husband for not

bringing sufficient dowry. Her husband as well as mother-in-law Ram

Piyari (deceased convict) used to taunt that they were repenting their

decision to marry Laxmi Narain and Jagdish in a poor family. She

further stated that her father did not send them back to their

matrimonial home for a period of 2 ½ years because of the aforesaid

cruel treatment; however, on 17.06.94, both the sisters were sent to

their matrimonial home after the gauna' ceremony. Even after gauna

ceremony, Laxmi Narain (deceased convict) used to beat her and

Jagdish, appellant, used to beat her sister Kamlesh and her mother-in-

law Ram Piyari (deceased convict) also used to abuse them and

instigated their respective husbands to torture them and they all used

to complain that witness Bimla and her sister had not brought scooter

and T.V. in dowry. Regarding the main occurrence resulting in death of

the deceased, PW1 Bimla stated that on 28.02.95, her brother-in-law

appellant Jagdish was beating the deceased and thereafter, he pulled

her hair and dragged her from the ground floor to the first floor while

beating her and when she tried to rescue her sister, the appellant

Jagdish gave her 2/3 slaps on the face. Thereupon, her mother-in-law

Ram Piyari(deceased convict) took her to an oil depot in Mangol Puri

market and there she pretended that she had forgotten to bring ration

card and went back home on the pretext of bringing ration card and

told her to wait for her there. She did not return and after waiting for

30-45 minutes, she (witness) got suspicious and came back home. On

reaching home at about 5:00 pm, she saw that her sister Kamlesh was

lying on the floor and Jagdish was pressing her down with his legs and

also pressing her neck with his hands. Her mother-in-law was holding

the legs of the deceased and her husband was holding the hands of

the deceased. When she asked as to what they were doing, her

husband caught hold of her and took her to another room and confined

her there. Her husband also threatened that if she disclosed the

incident to anyone else, she shall also meet the same fate and even

her father and brother would be killed.

10. PW2 Madan Lal is the father of the deceased. He is mainly a

witness to prove the charge under Section 498A IPC. He has stated

that marriage of his daughters was solemnised with the appellant

Jagdish and his brother Laxmi Narain (deceased convict) on 22.02.92.

His daughters Bimla and deceased, after marriage stayed at their

matrimonial homes for 7/8 days and, thereafter, came back and stayed

with him till their gauna ceremony on 17.06.94. 4/5 days later, the

appellant started abusing his daughters for not having brought

anything in dowry. The appellant Jagdish and his co-accused Laxmi

Narain used to beat his daughters and they used to demand scooter

and T.V. from his daughters, failing which they threatened to kill them.

He also stated that on 28.02.95 at round 5:00/5:30 pm, he was told by

a young girl Jyoti that his daughter Bimla has been killed. On this, he

along with his wife went to the house of the appellants and there they

found that their daughter Kamlesh had died and not Bimla. In the

cross examination, he was confronted with his earlier statement

Ex.PW2/DA recorded by the SDM on 01.03.95, where there is no

mention of any demand for scooter or T.V. PW5 Smt.Lali, mother of

the deceased stated that after the gauna ceremony, her daughters

went to their matrimonial home and there, the appellant Jagdish and

his mother Ram Piyari (deceased convict) used to taunt the deceased

"tere baap ne dahej mein kuch na diya" and on this account Kamlesh

was beaten regularly by both of them. She explained that aforesaid

facts were told to her by the deceased herself. She also stated that

about ½ month after the gauna, she and her husband talked to the

father of the appellant, Pratap Singh, about the cruel treatment meted

out to their daughter but he showed his helplessness by saying that he

had no control over the affairs of the family. She further stated that

Pratap Singh also told that his son had inflicted injury on the head of

the deceased and when the deceased visited her 25 days prior to her

death, there was head injury on her person and she told that it was

caused by the appellant Jagdish for not bringing sufficient dowry. She

also stated that she suspected that her daughter Kamlesh had been

strangulated to death by her husband Jagdish, as whenever he got

angry, he used to catch hold and press the neck of the deceased.

11. PW6 Dr.K.Goyal is the Autopsy Surgeon. He conducted the post

mortem on the dead body of the deceased. On examination, he found

following injuries on the person of the deceased:

"1. Small abrasion with bruising around over left side of upper lip of size 1 cm x 0.75 cm.

2. Abrasion 4.5 cm x 1.4 cm. over left side of front of neck joint lateral to midline about 2 cm below mandible transversely.

3. Diffuse bruising over front of neck between chin and thyroid cartilage about 5 cm x 4 cm area and small area of bruising over right side of thyroid cartridge.

4. Scratch abrasion about 7 cm x 0.25 cm placed transversally over left clavicular region.

5. Abrasion 1.5 cm x 1 cm over medial aspect of left fore-arms at upper part.

6. Three small abrasions about 1 cm to 1.5 cm apart each other of size 1.25 cm x 1 cm, 1 cm x 1 cm & 0.75 cm x 0.5 cm over left fore-arm at upper side & at posterior and postero-medial aspects.

7. Small abrasion 0.5 cm x 0.5 cm over left elbow posteriorly.

8. Small abrasion 1 cm x 0.25 cm over lower end of right arm posteriorly.

9. Bruise 2 cm x 1.25 cm over medial aspect of right arm at about junction of middle & lower third.

Internal:-

Head:- Scalp tissues and skull bones are intact. Meninges and brain matter intact and slightly congested.

Neck:- There are effusion of blood in neck layers on the left side below external injury(2) and above it and around thyroid cartilage and trachea. Clots also present into deeper layers on the sides of trachea.

Hyoid bone, thyroid cartilage, trachea cervical bones are intact. Tracheal mucosa slightly congested."

12. In his opinion, all the injuries were ante mortem in nature, caused

by blunt force application during the process of strangulation. He fixed

the time of death as approximately 20 hours prior to the start of post

mortem examination. He proved his report Ex.PW6/A.

13. The appellants in their statement under Section 313 Cr.P.C.

denied the prosecution version. Their defence essentially is that the

deceased Kamlesh had committed suicide by hanging herself with a

Saree by tying its one end to the ceiling fan as she was depressed

because of the reason that even though both the sisters were married

on the same day, her sister Bimla had conceived but she did not

conceive.

14. The defence of the appellants did not find favour with the learned

Trial Court and the learned trial Judge, relying upon the testimony of

the prosecution witnesses, convicted all the three accused for the

offences punishable under Section 302 IPC read with Section 34 IPC

and Section 498A IPC.

15. Learned counsel for the appellant has submitted that the

impugned judgment is based mainly upon the eye-witness account

of the occurrence given by the purported eye-witness Bimla PW1.

Her testimony is not reliable and her presence at the spot of

occurrence is highly doubtful because of the following reasons:-

(i) PW-16 IO S.I. Ishwar Singh, in his cross-

examination has stated that Bimla, sister of the deceased, was not present when he reached. He had reached at 7.30 p.m. and as per the statement of Bimla, her parents had arrived at 6.00 p.m. He further stated that she was not available till the arrival of her parents, who, according to him arrived at 11 or 11.30 p.m.

(ii) From 6.00 p.m. to midnight, she remained with her parents even then she neither disclosed this fact of killing to them nor to the police and thus withheld

this information, which shows that her statement was an afterthought and manipulated.

(iii) Her statement was recorded on the next day i.e. 01.03.95 in the office of the SDM at Tis Hazari where Advocates in large number are available and it is also a fact that the complainant had obtained the service of a private counsel in the case.

(iv) She was living separately with her husband at I-

468, Mangolpuri whereas the occurrence took place at H-733, Mangolpuri, where the deceased was living with her husband. This fact is established by the statement of her husband u/s 313 Cr.P.C. as well as the statement of DW-3.

16. Learned counsel further submitted that once she is

disbelieved, there is no evidence on record to support the charge

under Section 302 IPC. As regards the charge under Section 498A

IPC, it is submitted that the testimony of relevant witnesses PW1

Bimla, PW2 Madan Lal and PW5 Lali is vague and is devoid of

specific instances of any demand or cruelty meted out to PW1 or the

deceased Kamlesh. As regards the demand of T.V. and Scooter

also, their testimony is inconsistent. Thus, the Trial Court has erred

in concluding that the charge under Section 498-A IPC stood

established beyond reasonable doubt.

17. Third contention of learned counsel for the appellant is that

the learned Trial Court has fallen in error in rejecting the defence of

the appellant that the deceased, because of depression, committed

suicide by hanging herself with a Saree tied with the ceiling fan.

Expanding on the arguments, he submitted that the testimony of

the Autopsy Surgeon Dr. K.Goyal PW6 does not rule out the

possibility of a suicide. Dr. K.Goyal has opined that the death has

resulted because of asphyxia consequent to strangulation and

strangulation can be suicidal as well as homicidal. Thus, he has

submitted that since two views are possible as per the testimony of

Dr. K.Goyal, the learned Trial Judge ought to have given the benefit

of doubt to the appellant because the possibility of suicide cannot

be ruled out on the basis of the medical evidence.

18. Learned counsel for the State, on the other hand, has argued

in support of impugned judgment. He submitted that PW1 Bimla

Devi, PW2 Madan Lal and PW5 Lali have supported the case of the

prosecution on all aspects and there is no reason to doubt their

credibility. Thus, learned trial Judge has rightly found the appellant

guilty.

19. On careful consideration of rival contentions, the first question

which crops up for determination is whether the death of Kamlesh is

the result of suicide or homicide. The defence taken by the

appellant is that the deceased committed suicide because of

depression by hanging herself from the ceiling fan with a Saree. If

the aforesaid defence was true, then the dead body of the deceased

should have been found hanging from the ceiling fan. This, however

is not the case. According to the Investigating Officer, when he

reached at the spot, he found the dead body of Kamlesh lying on the

floor and it is not anyone's case that someone untied the dead body

from the ceiling fan and placed it on the floor. Learned counsel for

the appellant submitted that a possibility cannot be ruled out that

because of the weight of Kamlesh, the knot of Saree tied on the

ceiling fan might have got untied and her body fell on the floor. This

submission of learned counsel for the appellant is untenable, being

in the nature of conjunctures and surmises. Otherwise also, if that

had happened, then also the Investigating Officer should have found

the Saree with its noose around the neck of the deceased. No such

Saree was found at the spot of occurrence. Therefore, any

possibility of suicide is ruled out. Thus, we are of the view that this

is a clear case of homicide.

20. The next question for determination in this appeal is as to who

caused the death of the deceased? To prove the charge of murder

against the appellants, the prosecution is relying upon the

testimony of PW1 Bimla, whose version, in our view, is unreliable

because of the following reasons.

21. PW1 Bimla deposed that when she saw the appellant and his co-

convicts trying to strangulate her deceased sister Kamlesh and tried to

intervene, her husband Laxmi Narain (deceased co-convict) took her to

another room and confined her there. She also stated in her cross-

examination that she remained confined in the room till 6:00 p.m.

when her father opened the door of the room and rescued her from the

confinement and on coming out of the room, she found the police there

but neither did she give any statement to the police nor the police

recorded her statement. Had this version been true, then under the

natural course of circumstances, IO would have examined her, she

being the member of the family of the deceased. Her aforesaid

version, however is belied by PW16 SI Ishwar Singh who deposed that

when he reached at the spot of occurrence, he did not find PW1 Bimla

there. PW2 Madan Lal and PW5 Ms. Lali, the parents of the deceased

have stated in their respective cross-examinations that they met their

daughter Bimla in the police station at around midnight. If that was so,

then, at the police station also, the Investigating Officer had an

opportunity to examine and record the statement of PW1 Bimla but no

such statement was recorded. PW16 SI Ishwar Singh also deposed that

in the night intervening 28th of February, 1995 and 1st of March, 1995

at around 12:00 in the mid-night, he took the parents of the deceased

and her relatives to the residence of the SDM. If that version is to be

believed, then PW1 Bimla obviously must have accompanied the

Investigating Officer to the house of the then SDM. It is strange that

instead of recording the statement of eye-witness Bimla, the SDM

preferred to record the statement of her mother-in-law PW5 Lali. As

per the then SDM Sh. Virender Kumar PW8, he recorded the statement

of Bimla Ex.PW1/DA and that of Madan Lal Ex.PW2/DA in the next

morning. There is no explanation on the record as to why despite of

PW1 Bimla being available for making statement, her statement was

not recorded earlier. The above circumstances raise strong possibility

that PW1 Bimla is not an eye-witness and she has been introduced as a

witness after deliberations during the night.

22. On careful perusal of the testimony of PW1 Bimla, the story put

forth by her appears to be highly unnatural. She has stated that on

28th of February, 1995, even before the occurrence, she saw the

appellant Jagdish beating her sister and when she protested, her

mother-in-law Ram Piary (since deceased) took her to the market and

asked her to wait near Oil Depot on the pretext that she was going

back to the house for fetching the ration card which she had forgotten

to bring and that the witness kept on waiting for her mother-in-law for

30-45 minutes and when she returned, she saw the appellant and his

co-convicts strangulating the deceased. It does not appeal to reason

that the appellant and his co-convicts, if they intended to kill the

deceased, would have waited for 30-45 minutes for return of PW1

Bimla to create a witness against their unlawful act. We may note

that as per the testimony of parents of the deceased, namely PW2

Madan Lal and PW5 Lali, the purported eye-witness PW1 Bimla met

them in the police station on the fateful night. If their version is to be

believed, then under the natural course of the circumstances, PW1

Bimla was expected to tell them about the role of the appellant and his

co-convicts in the murder of the deceased. This, however, is not the

case because PW5 Lali and PW2 Madan Lal in their statement

Ex.PW5/A and Ex.PW2/DA respectively given to the then SDM only

expressed their suspicion against the appellant, which is a clear

indication that till the morning of 1st of March, 1995, PW1 Bimla had

not told either the Investigation Officer or her parents that she had

actually seen the occurrence. This by itself raises a strong doubt that

PW1 Bimla is not an eye witness.

23. In view of the aforesaid inconsistencies and infirmities in the

evidence of the prosecution, we do not find it safe to rely upon the

uncorroborated testimony of PW1 Bimla, whose presence at the time of

occurrence is highly doubtful. A possibility cannot be ruled out that as

the parents of the deceased suspected the hand of the appellant

Jagdish in killing of the deceased, they expected their son-in-law Laxmi

Narain to make a statement against Jagdish and when Laxmi Narain

refused to comply, they, after due deliberations introduced PW1 Bimla

as a false witness to implicate the appellant. Thus, we find it difficult

to sustain the conviction of the appellant under Section 302 IPC.

24. Charge under Section 498A IPC rests on the testimony of PW1

Bimla, sister of the deceased and the parents of the deceased,

namely, PW2 Madan Lal, PW5 Lali. Learned counsel for the

appellant has submitted that their testimony regarding dowry

demand and consequent cruel treatment to PW1 and her deceased

sister Kamlesh is not reliable because it is too general and vague,

without any reference to the specific instances. He has submitted

that a careful perusal of the testimonies of PW1 Bimla and her

parents would show that they have made material improvements in

the testimony in Court as against their previous statements

Ex.PW1/DA, PW2/DA and PW5/A made to the SDM. He has also

submitted that if these witnesses can go to the extent of falsely

implicating the appellants on the charge of murder, it is naturally

expected of them to make the allegations of cruelty and dowry

demand.

25. We find force in the above argument of learned counsel for the

appellant. On careful perusal of the testimony of the above

witnesses, it is apparent that they have generally made allegations

of demand for dowry and beatings given to PW1 Bimla and her

sister Kamlesh without detailing the specific instances with

approximate dates and particulars. Admittedly, both the sisters

were married to the appellant Jagdish and his brother respectively

on 22.02.1992 and after a short stay at their matrimonial home,

they returned to their parental home and stayed there till gauna

ceremony on 17.06.1994. Kamlesh died on 28.02.1995. There is

nothing on the record to suggest that during the intervening period,

any complaint whatsoever was lodged either by PW1 Bimla or

Kamlesh or their parents with the police. PW2 Madan Lal has

improved upon his earlier statement Ex.PW2/DA regarding the

demand of TV and scooter and for that reason he was confronted

with his statement Ex.PW2/DA. Further it is the case of the

prosecution that after the occurrence, the statements of PW1 Bimla,

PW2 Madan Lal and PW5 Lali were recorded by the SDM. All the

three witnesses with regard to the demand for dowry and the cruel

treatment meted out to PW1 Bimla and the deceased Kamlesh have

made marked improvements in their testimony vis-a-vis their

previous statements Ex.PW1/DA, Ex.PW2/DA and Ex.PW5/A recorded

by the SDM. All of them were confronted with their statements but

they did not come out with any cogent reason for the above

inconsistency in their statement in the Court vis-a-vis their previous

statements. Thus, we find it difficult to rely upon the testimony of

above witnesses. In our view, a possibility cannot be ruled out that

witnesses have made allegations regarding the dowry demand and

cruelty because of the suspicion that Kamlesh has been killed by the

appellants. Thus, we are of the view that the appellant is entitled to

the benefit of doubt.

26. In view of the discussions above, we find it difficult to sustain

the conviction of the appellant under Section 302 IPC read with

Section 34 IPC and Section 498-A IPC. We, accordingly, set aside

the impugned judgment of conviction and acquit the appellant of

the aforesaid charges, giving him the benefit of doubt.

27. The appellant Jagdish is in jail. He be released forthwith, if not

required in any other case.

28. Appeal is disposed of accordingly.

AJIT BHARIHOKE, J.

FEBRUARY 26, 2010                             A.K. SIKRI, J.
akb