State of
Punjab Vs. Hari Kishan & Ors [1997] INSC
752 (26 September 1997)
G.T.
NANAVATI, M. JAGANNADHA RAO
ACT:
HEADNOTE:
Nanavati,
J The State has filed this appeal against the acquittal of the three
respondents who were convicted by the Sessions Court but acquitted by the High
Court. The respondents No.1, Hari Kishan was convicted under Sections 302 and
201 IPC and his two brothers, Baldev Kumar and Jagdev kumar (Respondent Nos.2
and 3 respectively) were convicted under Section 201 IPC.
The
prosecution case that Jai Rani (Since deceased) had married R-1 of village Jagatpur
on 18th August, 1983. Soon after the marriage, the
respondents started pressing her either to get Rs. 20,000/- from her parents or
to secure an employment for R-1. When jai Rani returned to her parent's house
after about 25 days from the date of her marriage, she told her brother Ram Lubhaya
(PW-5) about the said demand.
Ram lubhaya
told her that it was not possible for them to pay Rs. 20,000/- but they would
help R-1 in securing employment. After staying at the parents' house for a few
days, Jai Rani returned to her in-laws' house. On 3rd December, 1983, Ajit Singh (PW-3) who had brought about this marriage,
went to village Jagatpur to meet his sister and brother-in-law, Bhajan Singh. Jai
Rani went to the house of Bhajan Singh at about 2.00 p.m. and told Ajit Singh about the demand of Rs. 20,000/- by R-1
and his brothers and the ill treatment given to her for not bringing that
amount.
He
advised to her to return house and consoled her by saying that he would after
some time meet her in-laws. In the evening at about 7 or 8 p.m., Ajit Singh along with his brother-in-law, Bhajan Singh
went to the house of the Respondents. They saw that R-1, R-2 and R-3 were
pulling her towards one of the residential rooms of their house. On seeing Ajit
Singh and Bhajan Singh there. they became nervous and left her free. Ajit Singh
requested the respondents not to ill-treat her and then he returned to his
in-laws' house. On the next day, Ajit Singh went back to his village in the
morning. In the morning of 4th December, 1983 at about 11 a.m. one Pokhar Ram
(PW-4), a dealer in cattle, visited the house of the respondents along with one
Santokh Singh as Santokh Singh was desirous of purchasing a young bullock and
the father of the respondents had told Pokhar Ram earlier that he wanted to
sell one. At that time, they saw the three respondents demolishing the roof of the
a `kotha' of their house. The respondents' father told him that they were busy
replacing the roof and, therefore, it was not possible for him to finalise the
sale on that day.
Some
time thereafter and before 12 noon, Ram Lubhaya
(PW-5) along with his sister Asha Rani went to the house of the respondents to
meet her sister. When they reached there, they found her lying on a cot inside
one of the rooms. R-1 was seen lying on a cot in the adjoining room. When Ram Lubhaya
tried to talk to him, he did not respond. R-2 and R- 3 told him that Jai Rani
had died due to collapsing of the roof of the `kotha' So he returned to his
village and informed his father Harbans Lal about the death of his sister. He
then contacted Bhajan Singh (PW-2) , Sarpanch of that village, and both of them
along with one Mohinder Singh went back to village and both of them along with one
Mohinder singh went back to village, and both of them along with one Mohinder
Singh went back to village Jagatpur on a motor cycle. Bhajan Singh (PW-2) after
verifying the death of Jai Rani. It was recorded in the Daily Diary as the
information given by him did not disclose commission of any offence. However,
after preparing the inquest report, the dead body of Jai Rani was sent for post
mortem examination.
The
post mortem report disclosed that she had died as a result of strangulation.
Therefore, on 6.12.1983, a case was registered for the offence punishable under
Sections 302 and IPC. Ultimately, all the three respondents were put up for
trial in the court of Sessions Judge, Jalandhar who framed a charge against R-1
under Sections 302 and 201 IPC and under Section 201 against R-2 and R-3.
In
order to prove its case, the prosecution had mainly relied upon the evidence of
Ajit Singh (PW-3), Pokhar Ram (PW-4), Ram Lubhaya (PW-5), Prem Kumar (PW-6)
before whom the respondents were alleged to have made an oral confession and
the medical evidence which ruled out the possibility of Jai Rani's death being
accidental or suicidal and established that it was homicidal.
On the
basis of the evidence of Dr. Pahwa (PW-1), the trial Court held that the death
of Jai Rani was due to asphyxia resulting from strangulation, that her death
was not accidental or suicidal but was homicidal and that she died during the
night intervening 3-4/12/1983. Believing the evidence of Pokhar Ram (PW-4), it
held that on 4.12.1983 at about 11.00 a.m. when he had gone to the house of the
respondents all the three were present, that they were demolishing the roof of
their 'Kotha' and that they had told this witness that they were replacing the
roof. The trial Court partly believed the evidence of Prem Kumar (PW-6) and the
extra-judicial confession made before him by R-1.
Relying
upon the evidence of Pokhar Ram (PW-4) and sub- Inspector Sardul Singh (PW-9),
it held that the roof of their `kotha' was really pulled down and it had not accidently
fallen. The trial Court also took into consideration the circumstance that the
respondents had at the outset attempted to explain the death of Jai Rani and R-
1 becoming unconscious due to falling of the roof . As the death took placed
during the night and as all the three respondents were occupying separate
rooms, the trial Court held that it was incumbent upon R-1 to explain the
circumstances under which his wife died during that night.
The
trial Court also held that the version of R-1 that he had left for his field at
bout 7.00 a.m. and when he had returned at about 11.00 a.m. he had found his
wife lying on a cot inside one of the rooms of the house and due to shock he
had become unconscious, was false. The trial Court considered this false
explanation as a missing link in the chain of circumstances. Though there was
no direct evidence as to who out of the three respondents had caused the death
of Jai Rani, the trial Court held that R-1 had caused the death of jai Rani.
It, therefore, convicted R-1 under Section 302 IPC and as all of them had tried
to fabricate evidence in order to save R-1, it held them guilty under Section
201 IPC.
The
respondents challenged their conviction by preferring an appeal before the High
Court. The High Court disbelieved the evidence of Ajit Singh and Ram Lubhaya as
regards the demand of Rs. 20,000/- and Jai Rani and held that the prosecution
has failed to prove the motive. Ram Lubhaya's (PW-5) evidence was disbelieved
as he had not stated anything before the police regarding the demand of Rs.
20,000/- and Jai Rani's visit to their house. Evidence of Ajit Singh (PW-3) was
disbelieved treating his conduct as unnatural as he had done nothing except
requesting the respondents not to misbehave with Jai Rani when he had seen them
pulling her on 3.12.1983 and after his return to the village on 4th he had not
informed the relatives of Jai Rani about it. The High Court disbelieved the
evidence of Prem Kumar and the confession made to him in view of the material
improvement made by him, by trying to make all the three respondents
responsible for the murder of Jai Rani. In his evidence before the Court this
witness had stated that "Hari Kishan, Baldev Kumar and Jagdev Kumar
accused asked me that they had killed Mst. Jai Rani and I should bring about a
compromise between them and Harbans Lal father of the deceased". Whereas
before the police he had stated that "Hari Kishan told me having apprised
his brothers at their tube-well regarding the murder of Jai Rani" .
Another reason given by the High Court is that even though he claims to have
cordial relations with the respondents, he had not come to know of the death of
Jai Rani till 16th and had not made any attempt to bring about a settlement. He
went on his own to the police on 18th and gave a statement. The High Court held
that even though the death of Jai Rani had taken place in the house respondents
and that it was by strangulation and as such it raised a strong suspicion yet
in absence of any direct evidence, R-1 cannot be held guilty for the offence of
murder. In support of its conclusion, the High Court relied upon the evidence
of Ram Lubhaya that only R-2 and R-3 were pressurising jai Rani to bring money
or get a job for her husband and that no complaint was ever made by Jai Rani to
bring money or get a job for her husband and that no complaint was ever made by
Jai Rani against her husband. The High Court also relied upon the circumstance
that R-1 had become unconscious and was required to be admitted in a hospital
at 1.30 p.m. According to the High Court if R-1
had the courage to strangulate his wife, then so soon after her death he would
not have become unconscious. The High Court also took into consideration the
absence of any effort by the respondents to cremate the dead body in a hurry or
to conceal it from the gaze of others.
Taking
this view of the evidence, the High Court allowed the appeal, set aside the
conviction and acquitted them.
It was
contended by the learned counsel for the State that the High Court has neither
appreciated the evidence of witness Ram Lubhaya correctly nor given good
reasons for discarding the evidence of Ajit Singh. He submitted that their
evidence clearly established motive on the part of Respondent-1 to cause the
death of his wife. He further contended that the High Court has rejected the
evidence of Pokhar Ram (PW-4) for no good reasons. It clearly established that
all the three respondents were present in the house at about 11.00 a.m. on 4th and at that time they were in the process of
pulling down the roof of their `Kotha' room. He also submitted that the High
Court not having disagreed with the finding of the trial Court that the death
of Jai Rani had taken place during the night intervening 3rd and 4th, ought to
have held that the explanation given by R-1 that his wife was alive when he
left for the field in the morning at about 7.00 a.m. was false. He also
submitted that as witness Prem kumar had cordial relations with the families of
the deceased and the respondents he was really an independent witness and had
no reason to falsely involve the respondents by stating that they had confessed
before him that they had caused the death of jai Rani. He lastly submitted that
the High Court committed a grave error of law in holding that in absence of any
direct evidence R-1 cannot be held guilty for the offence of murder, With
respect to R-2 and R-3, the learned counsel submitted that in view of the
evidence of witness prem kumar, their explanation ought to have been held as
false and their conviction under Section 201, should have been held as false
and their conviction under Section 201, should have been confirmed.
Though
we find some substance in the contention that the High Court has not correctly
appreciated the evidence of witness Ram Lubhaya and that the reasons given for
rejecting his evidence and the evidence of Ajit Singh are not proper, we do not
think it necessary to point out how the High Court has gone wrong in that
behalf, as we are inclined to agree with the submission made by Mr. Lalit, the
learned counsel for the respondents that even if the evidence regarding motive
is believed, the prosecution in this case has failed to establish that R-1 was
present in the house when the death of Jai Rani took place. Mr. Lalit submitted
that the trial Court erroneously proceeded on the basis that the death of Jai Rani
had taken place during the night between 3rd and 4th and even though the High
Court has not specifically disagreed with the said finding, it becomes apparent
from the judgment of the High Court that it did not agree with the same. This
being the most important aspect of the case, we have carefully, scrutinised the
evidence of the doctor who conducted the autopsy on the dead body and also
considered the reasons given by the trial Court in support of its finding. Dr. pahwa
(PW-1) had started examination of the dead body on the 4.12.1997 at 9.30 a.m. He has stated that the death of jai Rani had taken
place 12 to 36 hours before he had started the autopsy. This opinion was given
by him after taking into consideration the extent of rigor mortis on the dead
body and the contents of stomach and small and large intestines. Thus according
to the evidence of the doctor, the death of jai Rani had taken place any time
between 9.30 p.m. on 3rd and 9.30 p.m. on 4th. The trial Court, however,
relying upon some passages from Dr.
Modi's
book on Medical Jurisprudence, to which attention of Dr. Pahwa was not drawn,
and what was fond in the stomach and intestines of the deceased as a result of
the post mortem examination, had drawn an inference that death of Jai rani had
taken place 6 to 7 hours after she had taken food and thus in all probably ,
she had died during that night and most probably in the early hours of the
morning, Mr. Lalit submitted that the High Court has rightly not agreed with
that finding as it was not proper to jump to the conclusion form the presence
of some fluid in the stomach and some particles of food in the intestines that
the death had taken place in the early morning hours of 4th. The contention raised
by Mr. Lalit deserves to be accepted as Dr. Pahwa who had performed the
autopsy, had not ruled out the possibility of the death having taken place in
the morning of 4th after 7.00
a.m. Therefore, it
cannot be said that the explanation of r-1 that he had left for the field at
about 7.00 a.m., his wife was alive then and he
found her dead when he returned from the field at about 11.00 a.m. is inconsistent with the medical evidence. Moreover,
the evidence of Ram Lubhaya discloses that when he had gone to the house of
respondents on 4th at about 11.30 a.m. or
12 noon, he had seen many women sitting
nearby the dead body of his sister. It is quite natural that on coming to know
about the death of Jai Rani the neighbours and relatives of the respondents
must have gone to his house. However, the prosecution did not examine any
witness from the locality to establish as to when they came to know about the
death of Jai Rani.
Only
other evidence which could have established that R-1 and his brothers were
present in the house at about 11.00 a.m. and
at that time were engaged in pulling down the roof of the 'kotha' room and
which could have falsified the version of the respondents, is tat of witness pokhar
Ram.
According
to this witness, when he had gone to the house of the respondents he had found
the outer door of the house closed. He opened it by pushing the flaps of the
door and from there he saw that respondents were demolishing the roof of the ` kotha'
of the house with spades. He did not say that he had gone inside the house by
crossing the front room and then the open space and from there he had seen the
respondents trying to pull down the roof. From the sketch of the house which
has been exhibited in this case. it clearly appears that he could not have seen
the 'kotha' room either while standing near the entrance door or even after
entering the front room. Therefore, apart from the reasons given by the High
Court, his evidence becomes doubtful for the reason stated by us. Moreover, if
jai Rani was already dead by that time and the respondents were trying to
create evidence that her death was because of injuries received as a result of
accidental falling of the roof then they would not have kept the front door
unchained so that any one could open it and come inside and see what was going
on there. It, therefore, cannot be said that the High Court has committed any
error in discarding his evidence .
No
other evidence was led by the prosecution to prove the presence of R-1 in the
house at the time of death of Jai Rani. The medical evidence being inconclusive
and the evidence of witness pokhar Ram having been rightly rejected, the High
Court was right in holding that the prosecution has failed to established that
it was R-1 who had caused the death of Jai Rani. His version was that he had
left for the field at 7.00
a.m. and when he had
returned therefrom at about 11.00 a.m. he
had found his wife lying on a cot and some women were sitting and weeping near
that cot and due to the shock he had become unconscious. His Version that he
had become unconscious received support from the evidence of witness Ram Lubhaya
and the two doctors, viz, Dr. Hazari Lal (CW-1) and Dr. Laxmi Narayan (CW-2)
who were examined as Court witness. Ram Lubhaya has stated in his evidence that
when he went to his sister's house at about 11.30 a.m. he found the dead body of his sister placed on a cot in one
of the rooms and in the adjoining room his brother in law R-1 was seen lying on
a cot. When he had gone near him and attempted to talk with him he had not
responded. Dr. Hazari lal (CW-1) who is a private Medical practitioner at Mukandpur,
which is at a distance of about 3 to 4 kms. from village Jagatpur, has deposed
that on 4.12.1983 he was approached by Baldev Kumar (R-2) who requested him to
go to village Jagatpur to treat his brother Hari Kishan (R-1).
When
he went to the house of the respondents he found Hari Kishan lying unconscious.
He gave him medicines but considering his condition he advised them to remove
him to Primary Health Centre at Mukandpur. According to the evidence of Dr. Laxmi
Narayan (CW-2), Hari Kishan was brought to Primary Health Centre at about 1.30 p.m. and at that time he had found him unconscious. His
condition improved on 7.12.1983 and he was discharged on 10.12.1983.
But
the doctors have thus categorically stated in their evidence that they had
found R-1 unconscious. No questions were put to these doctors by the
prosecution as to whether he was really unconscious or not and how he had
become unconscious. From the evidence of these doctors, it further appears that
there was no injury on his person. Thus he had not become unconscious as a
result of any injury received by him while pulling down the roof as was tried
to be made out by the prosecution. This circumstance thus makes the version of
R-1 more probable.
It was
however, contended by the learned counsel for the State that if what the
respondents have stated in their statements under Section 313 Cr. P.C. was
correct, why did they attempt to mislead Ram Lubhaya and the police by stating
that Jai Rani had died they attempt to mislead Ram Lubhaya and the police by
stating that Jai Rani had died as a result of injuries caused to her by falling
of the roof.
In his
cross- examination, Ram Lubhaya has admitted that it was not R-1 but R-2 and
R-3 who had stated so R-2 and R-3 in their statements under Section 313 Cr.P.C
had stated that they knew nothing about how Jai Rani had died and that they
returned from the field at about 12.00 noon. Even if we proceed on the basis
that R-2 and R-3 had given a false explanation for the death of Jai Rani that
by itself cannot lead to an inference that R-1 had caused the death and that
they had tried to fabricate the evidence to save him.
It was
lastly submitted by the learned counsel for the state that the confession made
by the accused before witness Prem kumar, deserved to be accepted and that
alone was sufficient to prove the guilt of the respondents. The High Court has
given good reasons for not placing reliance on the evidence of Prem Kumar. This
witness cannot be regarded as are liable and independent witness in view of the
material improvement made by him while deposing before the Court. His version
also does not appear to be natural. The High Court was, therefore, justified in
not placing any reliance upon the evidence of this witness.
Though
it is a fact that Jai Rani died as a result of strangulation and that too in
the house of the respondents and that does create a strong suspicion that her
death was caused by someone residing in the house and in all probability by R-1
as he had some motive to do so, it is not possible to convict him as the
evidence led by the prosecution is not conclusive and no evidence was led by
the prosecution on the basis of which it can be said that the explanation given
by him in his examination under Section 313, Cr.P.C., is not probable. The
evidence led by the prosecution against R-2 and R-3 is also not sufficient to
warrant their conviction under Section 201 IPC.
This
appeal is, therefore, dismissed. Bail bonds of the respondents are ordered to
be cancelled.
Back