Vs. The State of Haryana  INSC 560 (13 October 1995)
B.N. (J) Kirpal B.N. (J) Mukherjee M.K. (J) Kirpal.J.
1996 SCC (7) 322 JT 1995 (7) 561 1995 SCALE (5)734
appeal by special leave is directed against the judgment of the Punjab & Haryana
High Court which has upheld the conviction of the appellant who had been held
guilty under Section 302 I.P.C. of murdering his wife Geeta Devi and had been
awarded life imprisonment. He was also convicted under Section 201 I.P.C. and
awarded imprisonment for two years.
case of the prosecution was that the appellant, who is an advocate by
profession, was married to Geeta Devi on 30.1.1982 at Alwar. During the
marriage ceremony, the in- laws of the appellant stoped the photograpoher
accompanying the marriage party to take the photographs of the ladies.
was not liked by the appellant who over-reacted and took off his 'sehra' and
threatened to walk-out of the 'mandap' prior to the performing of the wedding ceremonies.
his father-in-law, however persuaded him to resume his seat. After the
marriage, Geeta Devi had been complaining to her mother that her in-laws were
not happy with the dowry brought by her. On 14.11.1982, Geeta Devi gave birth
to a son. As was customary, Geeta's two brothers brought some gifts which were
not to the liking of the appellant and his mother. Geeta tried to shield her
brothers but the appellant slapped her and the said brothers informed the
parents about this incidence.
appellant and Geeta were residing along with appellant's parents in the house
at Mohalla Farash Khana, Narnaul. On 5.1.1983, the parents of the appellant had
gone to Delhi to meet their other son. The
appellant was alone with his wife Geeta and their infant son at the house in Narnaul.
At about 5 P.M., Mehar Chand P.W. 7 went to the
house of the accused to have some professional advice regarding some house tax
matter. He found appellant and his wife quarreling. The appellant told Mehar Chand,
P.W. 7 that he would see his after sometime as at that time, he was upset. Geeta
was not seen alive thereafter. On 7.1.1983, the appellant went to police
station, Narnaul at about 5.30 p.m. and
lodged a missing report regarding his wife. On 8.1.1983, the appellant sent a
telegram to his father-in-law at Alwar that Geeta was missing and he enquired
whether she had reached Alwar.
8.1.1983 at about 9.15
p.m. one Mala Ram Lambardar
informed ASI Inder Singh P.W. 21 who was on patrol duty that a dead body of a
female who was suspected to be the missing wife of the appellant was floating
in a well in the dharamshala of Kishan Sahai. Mala Ram's statement was recorded
by ASI Inder Singh who forwarded the same along with his endorsement to the
police station on the basis of which Daily Diary Report No. 31 (Ex. PY/2) was
entered at the police station, Narnaul. A.S.I. Inder Singh then proceeded to
the said well so that the arrangments could be made for taking out the dead
body that night. Some identified person telephoned Ramesh Chand Soni P.W. 11 at
9/10 P.M. on 8.1.1983 informing him that the dead body of Geeta had been recorvered
from the well. Ramesh Chand Soni requested the caller not to cremate the dead
body till the relations of Geeta reached Narnaul. Ramesh Chand Soni then went
to Ramjilal, father of Geeta and delivered him the aforesaid message whereupon Ramjilal
along with Ramesh Chand Soni and Durga Parshad left for Narnaul by car and
reached there in the morning where they found the police present at the house
of the appellant. The dead body was then taken out from the well in their
presence by Giarsi Lal P.W. 6 and Phool Singh. The dead body was photographed
before being taken out of well as well as after it had been taken out.
eye balls as well as the tongue of the deceased were protruding out and there
were also some other marks of injuries. The said body was identified by the
father and the cousin of the deceased. ASI Inder Singh then recorded the
statement of Ramjilal P.W. 15 and sent the same to P.S.
for the purpose of registration of case under Section 306 I.P.C. ASI Inder
Singh also prepared a inquest report and sent the dead body for post-mortem
the result was received by the investigating agency, the case was converted
from one 306 I.P.C. to one under Section 302 I.P.C. A search was made for the
appellant but he was not available.
prosecution alleged that the appellant had gone to Bhagirath P.W. 16 on
10.1.1983 and he made an extrajudicial confession before him and one Hardayal.
He is further stated to have been requested them to intercede with his
father-in- law and get a compromise effected. They accompained the appellant to
Narnaul where the appellant was produced before the police and he was put under
arrest. On completion of investigation, the police presented the charge-sheet
for offences under Sections 302 and 201 I.P.C. against the appellant.
the course of trial, Durga Prashad, Ram phal and S.I. Ram Kishore were given up
by the prosecution as unnecessary and Nathi Ram as having been won over. Ram Phal
was nevertheless examined as a court witness as C.W.1 at the request of the
counsel for the appellant. The prosecution relied upon the evidence of the
relations of the deceased including Ramjilal P.W. 15 about the conduct of the
appellant at the time of his marriage, the greed exhibited by him and his
parents when they asserted that Geeta deceased had brought insufficient dowry
and gifts given to her at the time of her child birth which were regarded by
them as insufficient. Mehar Chand P.W. 7 was produced to show that the
appellant was last seen in the company of the deceased at his house on 5.1.1983
at about 5 p.m. Bhagirath P.W. 16 was relied upon
to prove the extrajudicial confession by the appellant before him. The
appellant admitted his marriage with Geeta Devi deceased. He admitted his
signatures on the report dated 7.1.1983 lodged with the police station, Narnaul
but stated that the report was dictated by some of his companions as he was too
puzzled to utter even a word. He also admitted having sent telegram to his
father-in-law at Alwar on 8.1.1983. He denied the other circumstances apearing
against him as incorrect. The appellant then stated that his relations with his
wife were normal; there was no dispute either on the question of gifts on the
child birth nor any mal-treatment meted out to her from his side. On 5.1.1983
he left for the court and returned in the evening. He learnt from members of
the family including his sisters that Geeta Devi had gone to see a friend and
to deliver a letter. Geeta Devi, however, failed to return which made him and
other members of the family anxious and a search was started for her in the
houses of friends and relations. Some persons were sent out to trace out Geeta Devi.
A large number of his colleagues and friends visited his house to enquire about
his missing wife. The enquiry included questions regarding dress, ornaments,
habits, condition, health, relations with in-laws and all other things which
could help in tracing her out.
information was readily given. He was advised by his friends to wait for a day
before reporting the matter to the police. However, when Geeta Devi failed to
turn up even on 7th
appellant felt completely puzzled and mentally broken. Some of his friends took
him to police station for lodging a missing report. The report was actually
dictated by some of his companions which was signed by him. On 8.1.1983, he
learnt that the dead body of his wife had been discovered in the well. He along
with other relations was present when the dead body was taken out. The dead
body was cremated by him and he lit the funeral pyre.
there, he was taken away by the police for interrogation though on papers, his
arrest was delayed.
medical evidence was relied upon to show the cause of death. The post-mortem
was conducted by a board of three doctors consisting of Dr. K.C. Jain P.W. 1,
Dr. J.L. Bhutani P.W. 9 and Dr. O.P. Poddar P.W. 4. It was, inter alia, noted
in the report that the dead body was of a female who was identified as Geeta Devi
wife of Tej Parkash aged about 23 years. The length of the body was 5 feet 2
inches. There was a reddish contusion 4 1/2 inches in width in front of the
upper part of the chest and lower part of the neck extending from the right of
the left shoulder. On the back, there was reddish contusion of 3" width
near the shoulder in continuation of contusion in front. The under-lined sub cutanous
tissues were ecchymosed, hyoid bone was fractured.
body was of a young, moderately built female wearing one cream coloured
sweater, one blouse, brassiere, petticoat, red underwear and some jewellery.
The face was congested and swollen. Tongue and eye balls were protruding.
Bloody discharge was coming out of the nostril. Rigor mortis was absent.
Post-mortem lividity was present on the dependant parts. There was greenish discolouration
present on the abdomen and medical aspect of things and nails could be peeled
off. Scalp and skull were healthy. Membranes were congested. Brain was liquified.
Chest was healthy. Pleurae was healthy. Laryns and trachea were healthy and
right and left lungs were healthy and congested. Pericardium was healthy. She
was also having the below noted injuries:-
Contusion as already described.
contusion 7 c.m. x 3 c.m. on the side of the face.
Reddish contusion 6 c.m. x 4 c.m. on the right side of chest.
Reddish contusion extending from the middle of medial aspect of leg to the
middle of thigh varying in depth 2 1/2" x 3".
5. 2 c.m.
x 3 c.m. contusion on front of middle of chest.
opinion of the Doctors all injuries were antemortem in nature. Abdominal wall
was distended and greenish discolouration was present. Uterus was protruding
out slightly. In the opinion of the Doctors, death was due to asphyxia on
account of strangulation which was sufficient to cause death in the ordinary
course of nature. Duration between injury and death was between few minutes and
between death and post-mortem examination, it was between 2 to 4 days. Dr. K.C.
Jain P.W. 1 clarified that injury No. 1 namely, fracture of the hyoid bone was
sufficient by itself to cause death in the ordinary course of nature. Dr. O.P. Poddar
P.W. 4 was tendered for cross-examination. Dr. J.L. Bhutani P.W. 9 proved the post-martem
examination report and stated that the fracture mentioned in injury No. 1 in
the post-mortem examination report was sufficient in the ordinary course of
nature to cause death and the said injury was ante-mortem in nature.
the Trial Court, efforts were made to show that the fracture of the hyoid bone
could have occurred when the dead body was taken out of the well. In this
connection, reference was made to the statement of Giarsi Lal P.W. 6 who along
with one Phool Singh was engaged as a labourer to take out the dead body from
the well. In his examination-in- chief, Giarsi Lal P.W. 6 stated that he tried
to lift the dead body by holding the side of the head which slipped three times
and it was only in the third attempt that he succeeded in holding the dead body
from the side of the head and it was brought out. On his being declared
hostile, he was brought out. On hsi being declared hostile, he was allowed to
be cross-examined by the Police Prosecutor. The Trial Court came to the
conclusion that Giarsi Lal had gone out of the way to toe the line of the
accused and his statement that he tried to take out the dead body by holding it
from the head wa a clear attempt to help the accused and the same could not be
was also made to the statement of Dr. J.L. Bhutani P.W. 9 who had stated about
the possibility of hyoid bone fracturing in the process of the dead body being
taken out with the help of neck either by pulling it with a rope or with hands
could not be ruled out. He, however, stated that the assocaited injury could
help in determining whether the fracture was ante-mortem or post-mortem in
nature. The Trial Court found on the basis of evidence that both Dr. K.C. Jain
and Dr. J.L. Bhutani had admitted that no injury was found on the seat of
fracture of hyoid bone. In his croos-examinaiton, Dr. K.C. Jain P.W. 1 had
stated taht it was not necessary that applicaiton of force on the neck
resulting in fracture of hyoid bone must leave ecchymosis.
explained that direct force can result in fracture of hyoid bone firstly by
applying force on chest upwards and secondly, by plaicng a cloth padding
between the force and the neck. It was put to him that ecchymosis at the seat
of fracture of the hyoid bone could also occur if the person were to fall from
height on surface of water to which Dr. Jain replied in the negative. From the
cross-examination of the doctors, therefore, hyoid bone could be fractured by
indirect application of force, i.e. on the chest upwards and absence of finger
marks on the neck could also be explained if a cloth padding was used between
the hands and the neck.
Trial Court cmae to the conclusion that death in this case was due to
strangulation with ante-mortem injuries including fracture of hyoid bone and
that the death had taken place two to four days between death and post-mortem
and this corroborated the prosecution case that teh deceased was murdered on
the evening of 5.1.1983 and the post-mortem report was carried out on 9.1.1983.
The Trial Court, therefore, concluded that the theory of suicide stood negatived
firstly by the presence of injuries which were ante-mortem in nature; secondly,
there was no material on record indicating any suicidal tendency on the part of
the deceased and thirdly, it was well known that ladies are very much attahced
to their children and Geeta Devi and a son who was only about seven weeks old.
In the absence of a compelling reason, therefore, she would normally like to
live if for nothing else for the sake of her child.
perusal of evidence on record, the Trial Court further came to the conclusion
that the parents of the appellant were not present when the offence was
committed and, secondly, the conduct of the accused was not such as may be
consistent with his innocence and thirdly, he made efforts to crete evidence
that the deceased was missing with a view to suggest that she had gone away to
commit suicide. He made efforts to try to create piece of evidence which would
ultimately support his innocence and the theory that his wife was mentally ill
and has committed suicide but the same was false to his knowledge. The Trial
Court also accepted and relied upon the extra-judicial confession stated to
have been made to bhagirath P.W. 16 on 10.1.1983.
here by mentioned that the Trial Court did not think it sufficient to bas a
conviction on the testimony of Mehar Chand P.W. 7 to whom also extra-judicial
confession was allegedly made. On the basis of the evidence of the parents of
the deceased, the Trial Court came to the conclusion that hte prosecution had
clearly established the motive against the accused. The other factors which
were taken into consideraiton by the Trial Court were that he accused according
to his own admission in the report dated 7.1.1983 made to the police was last
seen with the deceased and thereafter the dead body of the deceased was
recovered from the well. There was also proximity of the said well to the house
of the appellant at Narnual, the distance between the well and the house only
being less than 100 feet. The shawl and sandals of the deceased were also
recovered at the instance of the accused and this, the Trial Court held also
corroborated the prosecution case.
in mind the well settled principle that a conviction could be based in a case
of circumstantial evidence only if the circumstances proved were of a clinching
nature, the Trial Court came to the conclusion that the prosecution clearly
established circumstances which taken together consitutied a complete chain and
the prosecution had clearly established the charge against the accused. The
conclusion which was arrived at by the Trial Court was that the appellant
caused the death of the his wife Geeta Devi by strangulation and it must have
been the appellant and none else who threw her dead body in the well to screen
himself from legal punishment.
appellant filed an appeal against the award of life imprisonment on his
conviction under Section 302 I.P.C. by the Trial Court and the award of two
years rigorous imprisonment under Section 201 I.P.C. It was contended before
the High Court that Geeta Devi had committed suicide by jumping into the well.
In order to explain the fracture of hyoid bone, reference was made by the
appellant's counsel to the statement of Giarsi Lal P.W. 6 in an effort to show
that the fracture took place at the time when the dead body ws being pulled out
fom the well. The High Court, however, came to the conclusion that the medical
evidence unmistakably pointed out to the fact that the deceased had been
strangulated to death and she had not committed suicide by jumping into the
well. As far as Giarsi Lal P.W. 6 is concerned, the High Court concluded that
the said witness had probably been won over by the appellant. After taking the
entire evidence into consideration and examining the contentions raised on
behalf of the appellant, the High Court observed as follows:
sum up there is unmistakableevidnece on the record that –
appellant and his parents were dissatisfied with the dowry broght by the decased.
They also complained about the insufficieny of the gifts brought by the
brothers of the deceased at the time of the chhuchhak ceremony.
The appellant was an ill-tempered man. Not only that, he also used to censor
the letters of the deceased so that she may not convey written information to
her parents about the ill-treatment meted out to her at the residence of her
The deceased was strangulated to death and the appellant lodged a false report
with the police that the deceased was missing. He did this in order to cover up
his own committed criminal acts.
After the commission of the crime, the appellant became panicky and took steps
to have the matter settled with his father-in-law and when he failed to do so
he made an extra-judicial confession before Bhagirath P.W. 16.
evidence conclusively establishes the guilt of the appellant.
deciding the appeal, the High Court took into consideration that the appellant
was an educated man who belonged to the legal profession and Ramjilal P.W. 15
had spent considerable sum of money at the time of the marriage of the deceased
and also when the ceremony took place on the birth of the child. The appellant
was, accordingly, also ordered to pay a fine of Rs. 1,00,000/- so that Ramjilal
P.W. 15 could be compensateld to some extent.
learned counsel for the appellant contended that this is a case of
circumstantial evidence and all the links in the chain are not established. He
tried to point out that there was a contradiction in the testimonies of two
doctors namely, Dr. K.C. Jain and Dr. J.L. Bhutani. He also submitted that the
third member of the Board who conducted the post-mortem namely, Dr. O.P. Poddar
should have been examined. The further contention wa that when prosecution has
cited a witness and if he is subsequently given up as having been won over,
then this causes serious prejudice to the defence and amounts to violation of
the principle of natural justice.
effort of Mr. Ganesh obviously was to trying persuade this Court to re-appraise
the evidence and come to a different conclusion. We find that the Trial Court
as well as the High Court were conscious of the fact that this was a case of circumstancial
evidence. Keeping in view the well established principles in mind the
concurrent findingarrived at by both the courts below was that the appellant
was guilty of murdering his wife. We have also carefully examined the record
and we do not find that the concurrent findidngs call for re-appraisal of the
evidence. This is more so when we find that the post-mortem report coupled with
the medical evidence reached only to one conclusion namely, that homicide and
not suicide had resulted in the death of the appellant's wife. It was contended
that the evidence of Dr. Bhutani P.W. 9 did not support the prosecution
inasmuch as it was deposed by Dr. Bhutani that the possibility of hyoid bone
fracturing in the process of the dead-body being taken out with the help of
neck, either by pulling it with rope or with hand could not be ruled out.
this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had
stated that when he tried to lift the dead body while taking it out of the
well, the head slipped thrice. Both the courts below have not rount the witness
Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as
the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same
is in any way in conflict or at variance with the post-mortem report. In the
post-mortem report, it has been stated that the injuries on the body of he
deceased were ante-mortem in nature. There was a fracture of the hyoid bone and
both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself
was sufficient to cause death in the ordinary course of nature.
specific questions, Dr. Bhutani P.W. 9 stated that "in this case, it is
possible to rule out the possibility of death by drowning because of the
presence of injuries on the person of the deaceased as described. If the
injuries as descirbed on the deceased were absent, there was a rare possibility
that it might not have been impossible to determine whether death was on
account of drowning". In view of this categorical staement, an observation
made by the witness that possibility of hyoid bone fracturing in the process of
dead body being taken out does not in any way weaken the prosecution case. This
was only his subjective opinion and does not run counter to the objective part
of the post-mortem report namely, that the death was caused due to fracture of
hyoid bone and the said injury was ante- mortem in nature. None of the symptoms
which attached to death by drowning e.g. water in the lungs or in the stomach
were present and Dr. J.L. Bhutani P.W. 9 in his examinaiton- in-chief had
categorically stated that the fracture of the hyoid bone was ante-mortem in
nature and this corraborates the evidence of Dr. K.C. Jain P.W. 1 as well as
the post- mortem.
as Dr. O.P. Poddar is concerned, he was only tendered for cross-examination
without his being examination-in-chief. Though, Dr.O.P. Poddar was not
examined-in-chief, this procedure of tendering a witness for cross-examination
is not warranted by law. This Court in that permitting the prosecution to
tender a witness for cross-examination only would be wrong and "the effect
of their being tendered only for cross-examination amounts to the failure of
the prosecution to examine them at the trial". In the present case,
however, non-examination of Dr. O.P. Poddar is not very material because the post-mortem
report coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani
P.W. 9 was sufficient to enable the courts to come to the conclusion about the
cause of death.
support of his contention that serious prejudice was caused to the appellant by
non-examination of Phool Singh who had been cited by the prosecution as one of
the witness, Hyderabad, 1954 (5) S.C.R. 475 and State of U.P. and another
aforesaid decisions can be of little assistance to the appellant in the present
case. What was held by the Privy Council and this Court was that witnesses who
were essential to the unfording of the narraitve on which the prosecution is
based must be called by the prosecution whether the effect of their testimony
is for or against the case for the prosecution and that failure to examine such
a witness might affect a fair trial. It was also observed that all the
witnesses of the prosecution need not be called. In the present case, the
witnesses who were essential to the unfolding of the narrative had been
examined. One of the facts which had to be estalished was that the body of the
deceased was found in the well and the same was taken out by two labourers,
namely, Giarsi Lal P.W. 6 and Phool Singh.
fact that this body was recovered from the well was proved by Giarsi Lal P.W.
6, amongs other witnesses, and Phool Singh who had apparently been cited as a
witness for the same purpose was not examined. His non-examination cannot be
regarded as causing any prejudice to the appellant. Out attention was also
drawn to the decision of the Allahabad High Court in the case of Sahabjan and
another that the mere allegation that some witnesses were not prepared to
support the prosecution case and had been won over by the accused would not be
sufficient and that opportunity should be given to the court to assess their
evidence and to come to such a conclusion. In that case the witnesses given up
had been named as being the eye witness to the incidence and it is in that
context the Court made the aforesaid observation. Non-examination of a witness
who had been cited by the prosecution would of course result in an adverse
inference being drawn in view of Illustraiton (g) of Section 114 of the
Evidence Act and may in some cases even caused prejudice to the defence, but in
the present case, Phool Singh who merely recovered the body from the well along
with Giarsi Lal P.W. 6 was not such an important witness whose non-examination
could be said to have caused any prejudice to the appellant.
opinion, the judgment opf the High Court warrants no interference. Accordingly,
the appeal is dismissed. The appellant will surrender to his bail-bonds and
serve out his sentence in accordance with law.