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PETITIONER: BHAGWAN DASS

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       16/01/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) RAY, G.N. (J)

CITATION:  JT 1996 (1)   483        1996 SCALE  (1)327

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      Bhagwan Dass  has filed  this appeal  against  judgment dated 29.10.1980  passed by  the High  Court of  Punjab  and Haryana in  Criminal Appeal  No.1104  of  1971  whereby  his conviction and  sentence imposed  by  the  learned  Sessions Judge,  Bhiwani  in  Sessions  Case  No.  50  of  1978  were confirmed.      Appellant Bhagwan  Dass had  married Shanno  Devi about eight years  before the  date of the incident which happened on the  night between  16th and  17th  July,  1978.  It  was alleged by the prosecution that about six months after their marriage Bhagwan  Dass  demanded  a  motor  cycle  and  some ornaments from  her parents.  As this  demand was not met he started ill-treating  her and  because of this ill-treatment she had  to leave  her husband’s  house and  stay  with  her father. She  was also  required to file an application under Section  125   of  the   Code  of   Criminal  Procedure  for maintenance. Bhagwan  Dass promised  to treat  her well  and again they  started living  together. After about two months Bhagwan Dass  again started  ill-treating her  as his demand for dowry  was still  not met.  On this  score, Tikkan  Lal, Jagat  Devi   and  Rajinder,   father,  mother  and  brother respectively of the appellant also started ill-treating her. The father  of Shanno  Devi was, therefore, required to take her  back   to  his   house.  Bhagwan  Dass  then  initiated proceedings for  judicial  separation.  Again  there  was  a compromise but  as the  appellant did  nothing thereafter to maintain her  she was  required to  file  a  petition  under Section 125 of the Code of Criminal Procedure. The appellant again entered  into a compromise and as a result thereof the proceedings were withdrawn by Shanno Devi on 12th May, 1978. Bhagwan Dass  then took  her to  his house at Bhiwani on 2nd July, 1978. It was alleged against the appellant that on the night between  16th and  17th July, 1978 he with the help of his brother  Rajinder killed  her by  strangulation and this

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act of killing her was done by the two on the instigation of their parents.  The appellant  and his brother Rajinder were charged under  Section 302  read with  Section 34 I.P.C. and Tikkan Lal  and Jagat  Devi were  charged under  Section 114 read with Section 302 I.P.C.      There was  no eye-witness to the incident. Evidence was lead to  show that  the appellant had demanded a motor cycle and some  ornaments and  as his  demand was not satisfied he and  his  family  members  were  ill-treating  Shanno  Devi, P.W.12, Krishan  Bahadur,  a  Chowkidar  of  that  area  was examined to  prove that  on that night at about 2.00 A.M. he had heard  a female  voice coming  from  the  house  of  the appellant and  when he  saw inside  the  house  through  the window panes, he found the appellant and Rajinder talking to each other.  He also  deposed before  the court that the cry which he  had heard  was "mujhe bachavao". Believing that it was a  domestic quarrel  as usual  he went  away  from  that place. P.W.17  Karam Chand  and P.W.  18  Jiwan  Singh  were examined to prove the alleged extra judicial confession made by the  appellant and Rajinder before them. P.W.11 Gangu Ram cousin of  deceased Shanno  Devi deposed  that after  he was informed about the death of Shanno Devi he went to her house and when  he enquired  from Bhagwan  Dass  as  to  what  had happened he  was informed  by Bhagwan  Dass that she was all right till  about 11.00  P.M. but  was  found  dead  in  the morning. P.W. 19 Nand Lal was examined to prove the recovery of the towel made by Bhagwan Dass with the help of which the neck of  Shanno Devi  was throttled.  On the  basis  of  the medical evidence  the learned  Sessions Judge  held that the death of Shanno Devi was homicidal and that she died because of strangulation.  The learned  Sessions Judge  accepted the evidence with  respect to  the demand  of dowry,  the  extra judicial confession  and the  recovery of  a  towel  at  the instance of  the appellant.  The learned Sessions Judge also believed  the   testimony  of  P.W.11  Gangu  Ram  that  the appellant had told him that Shanno Devi was alive till about 11.00 P.M.  on that night and was found dead in the morning. According to  the learned  Sessions Judge  all the aforesaid links completed the chain of circumstantial evidence and was sufficient to  bring guilt  home to the accused Bhagwan Dass and Rajinder.  He, therefore,  convicted them  under Section 302 read  with Section  34 I.P.C.  The evidence  against the other two  accused, namely,  the father  and mother  of  the appellant was  not found  to be  sufficient and,  therefore, they were acquitted.      Both the  convicted accused  preferred an appeal is the High Court.  On further  scrutiny of  the evidence  the High Court did  not find  the evidence of P.W. 12 Krishan Bahadur the Chowkidar,  the evidence  relating to the extra judicial confession and recovery of the towel as reliable. Even after discarding that evidence the High Court was of the view that the other  circumstances  were  sufficient  to  lead  to  an irrefutable inference  that the  appellant and none else had murdered  Shanno   Devi.  The   High  Court   confirmed  his conviction and  sentence and  dismissed his appeal. The High Court found  that the  evidence  against  Rajinder  was  too slander to  support his conviction and, therefore, acquitted him.      The  learned   counsel  appearing   for  the  appellant submitted that  there is  no reliable  evidence on record to show that Shanno Devi died during the night between 16th and 17th July, 1978. He also submitted that there is no evidence on record  to show  that the  appellant was  present in  the house during  that night.  He  further  submitted  that  the appellant was  working at  Rohtak and  that he  had gone  to

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Bhiwani on  the morning of 17th and that his defence to that effect has  not been properly appreciated by the High Court. Lastly, he submitted that the evidence led, in this case, is not sufficient  to lead  to the  only  hypothesis  that  the appellant alone  and none  else had  committed the murder of Shanno Devi.  In order  to appreciate  these submissions  we have gone  through the  evidence carefully. We find that the High Court was not right in believing the evidence of P.W.11 Gangu Ram  that when he enquired from Bhagwan Dass about the death of  Shanno Devi  he was  informed by Bhagwan Dass that she was  all right  till 11.00 P.M. on that night. According to Gangu  Ram on  learning about the death of Shanno Devi he had gone  to the house of Bhagwan Dass at about 9.00 A.M. as Shanno Devi  was  his  cousin.  After  going  there  he  had enquired from  Bhagwan Dass  as to  what had happened and he was informed  by Bhagwan  Dass that  she was  all right till 11.00 P.M.  Thereafter he stayed at the house of the accused till about  11.00 A.M.  and then  went home.  In his  cross- examination he  had stated  that when  he had  gone  out  to purchase vegetables  accused Rajinder  had come to his house and had  informed  his  wife  that  Shanno  Devi  had  died. Thereafter he had gone to the house of the appellant. He had to admit  that he  did not  tell the police that Bhagwan Das had told  him that Shanno Devi was all right till 11.00 P.M. Obviously, this  is an important omission. If really, such a statement was  made by  the appellant  the witness would not have failed  to mention it in his police statement. The High Court failed  to appreciate  that on this material point the witness was  making  an  improvement.  The  High  Court  has heavily relied  upon this  part of  his evidence,  as can be seen from the following observations in its judgment:      "This information is stated by Gangu Ram      in those  terms. "On  my enquiry Bhagwan      Dass told  me that  Smt. Shanno Devi was      all right  at 11  P.M. but  was dead  by      morning." On Sunday, 16th of July, 1978,      Bhagwan Dass  was  at  Bhiwani.  He  was      there on  the morning  of 17th  of July,      1978. During  the intervening  night  he      could not  be anywhere  else except  his      house where  his wife  Shanno  Devi  was      strangulated to  death. According to the      version given  by Bhagwan Dass appellant      to Gangu  Ram, she  was  alive  and  all      right  uphill  11  P.M.  After  11  P.M.      people normally retire to bed. Unless it      was stated  otherwise it has to be taken      that Bhagwan Dass appellant and his wife      must  have   retired  together  for  the      night. On  the following  morning,  that      is, 17th  of July, 1978, Shanno Devi was      pronounced dead  and her  death was  not      from natural  cause but  from  homicidal      injuries.  The   irrefutable   inference      flowing from these circumstances is that      Bhagwan Dass,  who had  a motive  to get      rid of  his wife,  had  murdered  Shanno      Devi and none else." To hold  that the  appellant was  at his house at Bhiwani on 16th July,  1978, the  High Court  has also  relied upon the statement made by the appellant during his examination under Section 313  of the  Code of  Criminal Procedure that he had reached his house on 17.7.1978 being Sunday at about 10 A.M. Really 16th  July and  not 17th  July was Sunday. Therefore, the High  Court held  that the  appellant  had  committed  a

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mistake while  stating the  date but  it was  clear from his said statement  that he  had gone to his house at Bhiwani at 10.00 A.M.  on 16th  July, 1978 which was a Sunday. The said statement was  made by  the accused in reply to the question put to  him that  he was  not available  to the  police till 20.7.1978 as  he was  absconding. In  reply to that question the appellant  stated: "I  was employed  at  Rohtak.  I  had reached my  house on  17.7.78 being Sunday at about 10.00 AM and came  to know about the death of Smt. Shanno Devi and by that time  my younger  brother and  co-accused Rajinder  had already informed  about the death of Smt. Shanno Devi to her relations. I  never absconded."  It is  significant to  note that in reply to Question No.23 which reads as follows:      "Why this  case  against  you?  and  why  the  PWs  are deposing against you?"      the appellant stated that "The PWs are falsely deposing against me.  From Rohtak  where I  am employed I returned to Bhiwani on Monday in the morning (17.7.1978)." If both these statements  are  read  together  it  becomes  apparent  that according to  the appellant  he had  returned to  Bhiwani on 17.7.1978. While  replying to  one question  he stated  that 17.7.1978 was Sunday while replying to the other question he stated that  it was Monday. Therefore, it was not proper for the High Court to treat the first answer of the appellant as an admission  that he  had gone  from Rohtak  to Bhiwani  on Sunday, the 16th July. The appellant had pleaded his absence from Bhiwani  during  that  night  and  there  is  no  other evidence on  record to  show, except  the statement of Gangu Ram, that  the appellant  was present at Bhiwani during that fateful night.  As pointed  out above  on  this  most  vital aspect witness  Gangu Ram  has made  an improvement and that makes the  presence of  the appellant at Bhiwani during that night doubtful.      One other  aspect which is required to be noted is that the doctor who had conducted the post mortem examination has stated that  he did  it at  9 A.M.  on  18.7.1978  and  that probable  time   between  the  death  and  the  post  mortem examination  was   between  24   and  48  hours.  In  cross- examination he  stated that  it was  not possible for him to fix the  nearest point  of time  when the deceased had died. Therefore, according to the medical evidence death of Shanno Devi could  have taken place between 9 A.M. on 16.7.1978 and 9 AM  of 17.7.1978.  When he examined the dead body he found that rigor mortis was absent and that in summer rigor mortis usually passes  off in  36 hours after death in North India. In view  of this  medical evidence  no  definite  conclusion could have  been drawn  that Shanno  Devi died  during  that night at  about 2.00  A.M. and  not  earlier  or  later.  On careful scrutiny  of the  evidence we  find that  there  are various missing  links in  the chain of circumstances and on the basis  of the  evidence  it  cannot  be  said  that  the appellant and  the appellant  alone had  caused the death of Shanno Devi  even if it is believed that the appellant had a strong motive to get rid of her. It was the prosecution case that not  only the appellant but Rajinder and the parents of the appellant  were also ill-treating Shanno Devi and wanted to  get   rid  of  her.  The  allegation  was  that  at  the instigation of  the parents and with the help of his brother Rajinder, the appellant had caused the death of his wife. We are therefore of the opinion that the High Court committed a grave error in coming to the conclusion on the basis of such insufficient  evidence   that  it   was  the  appellant  and appellant alone who caused the death of Shanno Devi.      We,  therefore,   allow  this  appeal,  set  aside  his conviction under  Section 302  I.P.C. and  acquit  him.  The

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appellant is  on bail  and, therefore,  his bail  bonds  are discharged.