Appeal against conviction for murder. Appellant argued no direct evidence placed him at the scene. High Court held that deprivation of lung power by smothering is unnatural and cannot be suicide. Appeal dismissed as conviction was sustained.
The appeal was dismissed; the conviction and sentence for murder under Section 302 IPC were upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. A. No. 749-DB of 2006
DATE OF DECISION : 09.03.2010
Narender
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
Present: Mr. J.S. Bedi, Advocate, for the appellant.
Mr. S.S. Randhawa, Addl. A.G., Haryana.
SATISH KUMAR MITTAL , J.
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appellant Narender was sentenced to undergo rigorous imprisonment for life and fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for one year, under Section 302 IPC.
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time and again. On 31.7.2005, on receiving the telephonic message from village Sanghi that his daughter was killed by Narender and Virender, he went to village Sanghi. When he did not find his daughter in the house of his son-in-law, then he made the complaint to Police Post Ghilaur and reported the matter.
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received by the police on 31.7.2005 at 10.00 PM. As per the information, given by the police, the death of Jagwanti took place due to hanging. During the post mortem examination, Doctors did not find any ligature mark on the body of the deceased. However, red coloured contusion was present on the left side of the face of the size of about 3 cm x 2 cm. The face on left side, neck and upper part of the chest were congested. Minimal bleeding from nostrils was present. Lips and fingers of both the hands were cyanosed. On dissection contusion, haematoma was present in the sub cutaneous tissue. Larynx and trachea were congested. Hyoid bone was intact. Lungs were congested. Liver, spleen and kidneys were congested. Stomach, small intestines and large intestines were sent for chemical examination. At the time of the post mortem examination, the opinion with regard to the cause of death was deferred to await the report of the Chemical Examiner. After receipt of the report, it was opined that the cause of death was due to asphyxia because of smothering.
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was examined to prove that the dowry articles given in the marriage were taken into possession by the police vide memo Ex.P1. PW.2 Dharambir was examined on to prove that the marriage of Jagwanti with appellant Narender was solemnized about five years ago. PW.3 Jai Bhagwan is the Pandit, who got performed the said marriage. PW.4 Dr. J.K. Bhalla, who conducted the post mortem examination of the dead body, has proved the Post Mortem Report Ex.P4. PW.5 Baljeet Singh HC, PW.6 Ram Niwas HC and PW.7 Jaidev Singh, MMHC are the formal witnesses, who have tendered their affidavits Ex.P7, Ex.P8 and Ex.P9, respectively, with regard to the handling of the case property and delivering the special reports to the Illaqa Magistrate, SP Rohtak and DSP (D) Rohtak. PW.8 Sumit Kumar Constable, who had prepared the site plan of the spot on the asking of the police and on the demarcation of Ram Singh complainant, has proved the site plan Ex.P10. PW.9 Shamsher Singh HC had got conducted the post mortem of the dead body of the deceased. PW.10 Ram Singh complainant, PW.11 Smt. Kitabo wife of Ram Singh complainant, PW.12 Ajay Kumar son of Ram Singh complainant, PW.13 Sukhbir (cousin brother of the deceased) and PW.14 Ram Chander (brother of complainant Ram Singh) turned hostile and did not support the case of the prosecution. These witnesses stated that deceased Jagwanti never made any complaint to them about her harassment by the accused. They never made any statement before the police. PW.10 complainant Ram Singh (father of the deceased) even has denied to have given application (Ex.P12) to the police for registration of the case. PW.15
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SI Megh Ram has proved the formal registration of the FIR Ex.P17 on the basis of the complaint made by the complainant. PW.16 Inspector Rohtas Singh deposed about the submission of final report under Section 173 Cr.P.C. PW.17 ASI Raj Singh is the Investigating Officer of the case, who stated that on 24.10.2005, he arrested both the accused and on 25.10.2005, he recovered the dowry articles from the house of the accused vide memo Ex.P1. This witness categorically stated that after registering the case on the application (Ex.P12) made by the complainant, he went to the place of occurrence and prepared the rough site plan Ex.P18. Thereafter, he went to PGIMS Rohtak, where the dead body was lying and he prepared the inquest report there. Thereafter, the dead body was handed over to HC Shamsher Singh to get its post mortem examination.
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and others rushed towards the house, where they noticed that Jagwanti was lying on the cot and she had covered her face with a plastic bag, which she had worn like a cap. That plastic bag was sticked with the nose and the mouth. She had also tied cloth i.e. Chunni (Dupatta) over her mouth. He realised and presumed that it was on account of playing game of hide and seek with the children and in an attempt to use the plastic bag, she has died. This witness further stated that he removed the cloth as well as plastic bag, but she was not breathing. Number of persons were present at that time. He took telephone number of Dhani Phaugat, from where she belonged. He intimated her parents about the incident. This witness has stated that Jagwanti was taken to the Hospital by the police and her parents. In the cross-examination, he admitted that some blood was visible outside the nostril. However, there was no blood on the clothes of Jagwanti. He further stated that he had placed the plastic bag as well as Dupatta near the head of the dead body.
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the fact that appellant Narender has failed to explain as to how smothering had taken place, and the fact that when he could not establish the plea that the deceased has died due to hanging, then he attempted to produce false witness Dharambir as DW.1, the trial court convicted appellant Narender under Section 302 IPC for committing the murder of his wife and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-. However, co-accused Virender was acquitted of the charge under Section 302 IPC. Against his conviction, appellant Narender has filed the instant appeal. No appeal has been filed by the State against the acquittal of coaccused Virender.
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convicted merely on suspicion, because in his statement under Section 313 Cr.P.C., he has admitted that the deceased has died in his house. According to the learned counsel, in the instant case, none of the prosecution witnesses has supported the prosecution version with regard to the harassment of the deceased by the accused in connection with demand of dowry. By accepting that position, even the trial court has acquitted the appellant of the offence under Sections 498-A and 304-B IPC. In spite of the said fact, the trial court has convicted the appellant for the offence under Section 302 IPC, while relying upon the medical evidence to the effect that the cause of death was smothering and not hanging, and the fact that at the time of the occurrence, the appellant was present in the house, therefore, it was for him to explain the circumstances and the manner, under which she had died, which according to the trial court the appellant could not explain. Learned counsel submitted that merely because the un-natural death of the wife had taken place in her matrimonial house, the husband cannot be convicted for causing her death, only on the basis of the fact that the husband was present at the time of the alleged occurrence and he could not establish the plea taking by him in his statement under Section 313 Cr.P.C. According to the learned counsel, the statement under Section 313 Cr.P.C. is not substantive piece of evidence. It can only be used for corroboration of the prosecution case. Merely on the basis of the statement under Section 313 Cr.P.C., an accused cannot be convicted. The prosecution has to affirmatively prove the offence. While relying upon the judgments of the Hon'ble Supreme Court in
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Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P. , 2004 (4) RCR (Criminal) 106, Manjunath Chennabasapa Madalli v. State of Karnataka, 2007 (2) RCR (Criminal) 84, Vanga Sriniwas v. Public Prosecutor, High Court of A.P., 2007 (4) RCR (Criminal) 216, Sohel Mehaboob Shaikh v. State of Maharashtra, 2009 (2) RCR (Criminal) 788 and a Division Bench decision of this Court in Sucha Singh v. State of Punjab, 2003 (3) RCR (Criminal) 88, learned counsel for the appellant argued that in these facts and circumstances, conviction of the appellant under Section 302 IPC is not sustainable.
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turned hostile. They did not support the prosecution case with regard to the harassment of the deceased by the accused on account of non-fulfilling of their demand of dowry. The father of the deceased, who was the complainant, has gone to the extent that he has denied of having made written complaint (Ex.P12) to the police. It has been held that when the murder of the wife was committed in the house, and except the husband, no body was present in the house, it was for the husband to explain as to under what circumstances and in which manner, the deceased died due to smothering. In view of these facts and circumstances, according to the learned counsel, the trial court has rightly convicted the appellant. 13. Before considering the various arguments, raised by learned counsel for the appellant, it has to be decided that in the present case as to whether the deceased had died due to hanging or by smothering. According to the appellant, it is a case of hanging. In this regard, learned counsel for the appellant, during the course of arguments, put much reliance on certain averments made in the inquest report (Ex.P19) as well as the site plan (Ex.P18), prepared at the spot by ASI Raj Singh (PW.17). In the marginal notes, attached to the site plan (Ex.P18), it was stated that Mark B is the place, where a “Hook” for ceiling fan is fixed, on which deceased Jagwanti was stated to have committed suicide. In column No. 12 of the inquest report (Ex.P19), where information is to be given as to in what manner or by what weapon or instrument the injury or mark of violence appear to have been inflicted, it has been recorded as “Hanging”. In column No. 14, the
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apparent cause of death has also been recorded as “Died because of hanging”. Learned counsel also referred to column No. 10, where it has been recorded that there is no scratch around her neck. On the basis of these averments in the inquest report and the statements of the prosecution witnesses, wherein they have stated that the deceased died due to hanging, learned counsel argued that in the instant case, the cause of death is hanging.
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the post mortem examination, do not confirm the death because of hanging. It was a clear cut case of death caused by smothering. As far as the mentioning of death due to hanging in the inquest report is concerned, it was based upon the hear say information given to the police by the accused or their family members. It has come in evidence that body of the deceased was shifted to PGIMS Rohtak and the information regarding the death of Jagwanti was received by the police on 31.7.2005 at 10.00 PM, but the inquest report and the site plan were prepared subsequently on 1.8.2005. ASI Raj Singh (PW.17), the Investigating Officer of the case, stated that he prepared the rough site plan and the inquest report on the information given by the complainant. Therefore, on the basis of averments made in the inquest report, it cannot be said that the deceased had died due to hanging, when the medical evidence is totally contrary to that and clearly establishes that the deceased had died due to asphyxia because of smothering. Therefore, in our opinion, by the medical evidence, the prosecution has fully established that the instant case is a case of death by smothering. As per the well established principle of medical jurisprudence, one himself/herself cannot cause his/her death by smothering. The act of causing death by smothering is not suicidal.
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Crl. A. No. 749-DB of 2006
following tests :
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present at the time of the alleged offence, it is for the husband to offer the explanation as to under what circumstances and in what manner, his wife had died. If the husband does not offer any explanation as to the manner in which his wife died or received injuries or if his explanation is found false, then it gives strong circumstance indicating that he has committed the crime. It is the duty of the court to see that no innocent person is punished. It is equally also duty of the court to see that a guilty person does not escape. Both are the public duties. The Hon'ble Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 Supreme Court Cases 681 has held that the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Section 106 of the Indian Evidence Act, 1872 says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 17. In the present case, admittedly, deceased Jagwanti had died in the house of the appellant (her husband) on 31.7.2005. In reply to a question put to the appellant under Section 313 Cr.P.C., he admitted that his wife had died in his house. However, he stated that she died not because of asphyxia, but because of hanging. But during the cross-examination of the prosecution witnesses, no suggestion was put to any of them that at that time, the appellant was not present in the house. The trial court has recorded
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a finding in this regard that at the time of the alleged occurrence, the appellant was present in his house. In the facts and circumstances of the case, the said finding cannot be said to be wrong or perverse. It has come in the evidence that the deceased had died in a room situated on the first floor of the house, which has only one stair case. In the said house, appellant was residing alone with his wife. In these facts and circumstances, when no eye witness account is available as to how the deceased has died, it is for the appellant to explain as to how his wife has died in his house. When the incriminating circumstances were put to the appellant that his wife had died due to asphyxia in his house on 31.7.2005, he then only explained that though it is correct that she died in his house, but not due to asphyxia, rather by hanging. The appellant has not explained as to how his wife has died due to hanging, whether she had hanged herself with the “Hook” fixed for ceiling fan. If that was so, who had removed her from there and thereafter, who had taken her dead body to the Hospital. Neither in his statement under Section 313 Cr.P.C., nor in his defence evidence, the appellant gave any explanation as to how his wife has died due to hanging and who had taken her dead body to the Hospital.
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discharged and thereafter, the burden lies upon the appellant to give a cogent explanation as to how his wife has died due in the house.
“31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof on the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to
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presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, it
was held that where an accused is alleged to have committed murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Similarly, in Nika Ram v. State of H.P., (1972) 2 SCC 80, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v.
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State of Maharashtra, (1992) 3 SCC 106, the husband was prosecuted for the murder of his wife which took place inside his house. It was held that when the death had occurred in his custody, the husband is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with the absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300, the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. It was held that chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation.
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alleged to be running a chemist shop in front of the house of the appellant. In order to cover up the evidence led by the prosecution that the death was due to smothering and not by hanging, the said witness was examined in defence, who stated that on the day of occurrence, at about 7.00 PM, on the alarm raised by the children from the roof of the appellant that Jagwanti had become unconscious, he along with other persons went to the house, where he found that Jagwanti was lying on the cot. She had covered her face with a plastic bag, which was worn by her like a cap. This witness presumed that since the plastic bag was sticked with the nose and mouth, therefore, she has died. The trial court has rightly not believed this version and found it to be false. This witness has stated that Jagwanti was taken to the Hospital by the police and her parents, but it has come in evidence that when the parents of Jagwanti reached village Sanghi, by that time, the dead body of Jagwanti was shifted to the Hospital and on the next day, they made a written complaint to the police and thereafter, the police visited the place of occurrence and the Hospital and prepared the inquest report. Therefore, this witness has patently told a lie that the deceased was taken to the Hospital by the police and her parents. When instead of explaining the situation and the manner, in which the deceased had died in the house of her husband, the appellant has led false evidence in order to establish that accidentally his wife died due to smothering, the same becomes an additional link in the chain of circumstances to make it complete. The aforesaid version given by this witness is not confirmed or corroborated by the medical evidence.
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During the post mortem examination, injuries were found on face, neck and chest. Red coloured contusion was present on the left side of the face of the deceased. Such kind of injury is possible only if the smothering is caused by closing mouth and nose by putting hand or some other object, due to which the aforesaid injury was caused on the face of the deceased. The version given by DW.1 does not explain how the deceased had received injuries on her mouth. The medical evidence clearly establishes that Jagwanti had died on account of asphyxia due to smothering. These circumstances point to the guilt of the appellant and are inconsistent with his innocence. Therefore, in our view, the prosecution has fully proved the guilt of the accused beyond a reasonable doubt and the trial court was perfectly right in convicting the appellant under Section 302 IPC and sentencing him to undergo life imprisonment.
( SATISH KUMAR MITTAL ) JUDGE
March 09, 2010 ( JORA SINGH ) ndj JUDGE
3 issues framed by the court
Whether an accused can be convicted for murder based on circumstantial evidence when the cause of death is smothering and the accused offers a false explanation.
Whether Section 106 of the Indian Evidence Act imposes on the husband the burden to explain the cause of his wife's death when it occurs in their joint house.
Whether the appellant's false explanation regarding the mode of death completes the chain of circumstantial evidence necessary for conviction.
Colour shows how this judgement treated each authority
Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P.Referred¶48
Dasari Siva Prasad Reddy v. The Public Prosecutor, High Court of A.P., 2004 (4) RCR (Criminal) 106
Manjunath Chennabasapa Madalli v. State of KarnatakaReferred¶48
Manjunath Chennabasapa Madalli v. State of Karnataka, 2007 (2) RCR (Criminal) 84
Vanga Sriniwas v. Public Prosecutor, High Court of A.P.Referred¶48
Vanga Sriniwas v. Public Prosecutor, High Court of A.P., 2007 (4) RCR (Criminal) 216
Sohel Mehaboob Shaikh v. State of MaharashtraReferred¶48
Sohel Mehaboob Shaikh v. State of Maharashtra, 2009 (2) RCR (Criminal) 788
Sucha Singh v. State of PunjabReferred¶48
Sucha Singh v. State of Punjab, 2003 (3) RCR (Criminal) 88
Trimukh Maroti Kirkan v. State of MaharashtraExplained¶16
Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 Supreme Court Cases 681
State of W.B. v. Mir Mohd. OmarExplained¶19
State of W.B. v. Mir Mohd. Omar, (2000) 8 SCC 382 · Who else cites this
Nika Ram v. State of H.P.Explained¶89
Nika Ram v. State of H.P., (1972) 2 SCC 80 · Who else cites this
Ganeshlal v. State of MaharashtraExplained¶89
Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 · Who else cites this
State of U.P. v. Dr. Ravindra Prakash MittalExplained¶89
State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 · Who else cites this
1 provisions across 1 enactments
Narender
State of Haryana
Satish Kumar Mittal
Jora Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
