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CASE NO.: Appeal (crl.)  344 of 2007

PETITIONER: BIJA & ORS.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT: 10/01/2008

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

1.              The present appeal is directed against  the judgment and order of conviction and  sentence recorded by the Additional Sessions  Judge-I, Kaithal dated May 17, 2001 in Sessions  Trial No. 52 of 1999 and confirmed by the High  Court of Punjab & Haryana on July 6, 2006 in  Criminal Appeal No. 435-DB of 2003. By the  aforesaid orders, all the appellants were  convicted for an offence punishable under  Section 302 read with Section 34 of the Indian  Penal Code (IPC) and ordered to undergo  rigorous imprisonment for life and to pay fine  of Rs.2000/- by each of them. Default sentence  was also ordered. 2.              The case of the prosecution was that  Smt. Santro (deceased) was the daughter of PW2- Lakhmi Chand. Lakhmi Chand was having another  daughter named Shero. Both the sisters  (daughters of Lakhmi Chand) were married to two  sons of Bija\027accused No.1. Whereas deceased  Santro married to accused No.2\027Raghbir Singh,  Shero (sister of deceased Santro) married to  Subhash Singh, another son of Bija-accused No.1  and brother of Raghbir Singh-accused No.2.  According to the prosecution, though the  marriage of both the sisters was solemnized in  1988, deceased Santro was unhappy at her  matrimonial home. It was alleged that accused  Raghbir Singh-husband of Santro was not happy  with his wife. Santro was not beautiful, she  had not brought sufficient dowry with her and  also that she could not conceive and bear a  child in spite of the fact that substantial  period of about 7-8 years after marriage had  elapsed. In view of the above facts, accused  Raghbir singh became almost indifferent to  Santro and nearly abandoned her. The Panchayat  was informed and several meetings were held and  ultimately, due to intervention of the  Panchayat, after about ten years of the  marriage and 5-6 months prior to the incident  which took place in May, 1998, Santro again got  married to Jagdish-accused No.3 (younger  brother of Raghbir Singh) who was bachelor at  the relevant time, by exchanging garlands

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(Jaimala). It was the case of the prosecution  that the accused were not in favour of the  second marriage of Santro with Jagdish, but  they had to agree and the marriage was  performed due to intervention and pressure by  the Panchayat. That was said to be the motive  on the part of the accused for causing death of  deceased Santro. 3.              According to the prosecution version,  in the night intervening May 1st & 2nd, 1998,  Santro died in the house of her in-laws. The  allegation was that, all the four accused,  namely, Jagdish-husband of Santro, Raghbir  Singh-former husband of Santro, Bija and Sona  Devi \027 father-in-law and mother-in-law  respectively of Santro caused her death by  closing her mouth and nose and by smothering  her. 4.              According to PW2-Lakhmi Chand (father  of deceased Santro), he was at his agricultural  field in the night of May 1, 1998. There he  received a message that his daughter was killed  by all the four accused persons. He immediately  went to his house from the field and  accompanied by PW3-Sher Singh (Sarpanch of the  village) and PW4-Ganga Singh (brother-in-law of  PW2 Lakhmi Chand and maternal uncle of deceased  Santro) went to the house of the accused and  found dead body of his daughter Santro lying  near the door of the room. An electric wire was  hanging over the dead body of his daughter.  PW2-Lakhmi Chand along with Sher Singh, Ganga  Singh and others, then went to the Police  Station, Rajound and lodged First Information  Report (FIR) with the police. After usual  investigation, charge sheet was submitted. It  appears that initially the case was registered  against the accused for offences punishable  under Sections 498A, 304B read with Section 34,  IPC. But, since the Court was satisfied that  prima facie there was sufficient material to  frame charge against the accused for an offence  punishable under Section 302 read with Section  34, IPC, the charge was amended and all the  four accused were also charged for an offence  punishable under Section 302 read with Section  34, IPC in addition to offences punishable  under Sections 498A and 304B read with Section  34, IPC. 5.              The prosecution, in order to prove  guilt of the accused, examined as many as 12  witnesses including PW2-Lakhmi Chand (father of  deceased), PW3-Sher Singh (Sarpanch of the  village) and PW4-Ganga Singh (maternal uncle of  deceased Santro). It was stated in the FIR that  deceased Santro was killed by all the accused  in furtherance of common intention by giving  electric current to her, as electric wire was  lying near the dead body of Santro, but during  the course of investigation, it was found that  there was no electric connection in the house  of the accused and medical evidence also  revealed that death of deceased Santro was  caused due to asphyxia by smothering and  accordingly, the case was considered on that

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basis. 6.              After appreciating the evidence on  record, the trial Court came to the conclusion  that it was clearly established by the  prosecution, particularly from the evidence of  PW2-Lakhmi Chand (father of deceased Santro)  and PW4-Ganga Singh (maternal uncle of deceased  Santro) that the deceased was not happy at the  matrimonial home. Several circumstances were  responsible which made accused unhappy with  Santro and her life miserable. They were, inter  alia, narrated by the prosecution witnesses, as  Santro not being very beautiful, she did not  bring sufficient amount of dowry with her and  could not give birth to a child. It has also  come in evidence that attitude of accused  Raghbir Singh-former husband of deceased  Santro, was totally indifferent and he had  almost abandoned her. Several complaints were  made to the Panchayat and the Panchayat  insisted that the family of the accused must do  something to do justice to Santro as there was  no fault on the part of deceased Santro for  which she was not treated properly. At the  intervention of the Panchayat in October, 1997,  therefore, the family of the accused had to  agree to marry one of his sons (accused  Jagdish) with deceased Santro by Karewa  marriage. It is clear from the prosecution  evidence that none of the family members of the  accused liked the marriage of Santro with  Jagdish-younger brother of Raghbir Singh-former  husband of Santro. Once again Santro could not  conceive and accused Jagdish and other family  members of the accused got disturbed. From the  prosecution evidence, it is clear that in the  intervening night between May 1 and 2, 1998,  all the family members except deceased Santro  were sleeping on the roof of the house of the  accused and Santro alone was in her room at the  ground floor. According to the prosecution,  when the family members of the accused came in  the morning of May 2, 1998, Santro was found  dead in her room. Since no outsider was present  in the house and as the accused persons were  unhappy with Santro and they had motive and  reason to kill Santro, all of them jointly  committed the murder of Santro. Then with a  view to mislead the investigating agency, they  had put an electric wire near the dead body of  Santro. From the evidence of PW10-Inspector  Gulzar Singh, however, it was proved that there  was no electric connection in the house of the  accused and the possibility of death of Santro  by electrocution was thus ruled out. The case  was also put forward by the defence under  Section 313 of the Code of Criminal Procedure,  1973 as also by examining DW1\027Shero-real sister  of deceased and wife of Subhash Singh-brother  of accused Raghbir Singh and Jagdish that  deceased Santro was suffering from Epilepsy and  she died due to that ailment. But from the  evidence of PW9-Dr. B.B. Kakkar, it was clearly  established that the cause of death was neither  electrocution nor Epilepsy but asphyxia due to

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smothering. 7.              The trial Court held that both the  sisters\027Shero and Santro got married to two  brothers on one and the same day. Both the  sisters were then sent to matrimonial home. It  was, therefore, not possible to believe that  there was dowry demand from one sister i.e.  deceased, and not from the other sister i.e.  Shero. Again, no sufficient evidence was led by  the prosecution to prove demand of dowry and  death of deceased Santro on that account.  Accordingly, the trial Court acquitted all the  accused for offences punishable under Sections  498A and 304B read with Section 34, IPC. But  the trial Court was satisfied that all the  accused killed Santro in furtherance of common  intention and accordingly, it convicted them  for an offence punishable under Section 302  read with Section 34, IPC. 8.              The High Court again considered the  evidence on record and submissions made by the  parties and held that the trial Court did not  commit any error of fact or of law in  convicting the accused for an offence  punishable under Section 302 read with Section  34, IPC and dismissed the appeal. 9.              On January 12, 2007, notice was issued  by this Court on Special Leave Petition as well  as on bail application. On March 12, 2007,  leave was granted and hearing of the appeal was  expedited. On May 16, 2007, accused Nos. 1, 2 &  4 (parent-in-laws and former husband of the  deceased) were enlarged on bail but the bail  application of Jagdish (husband of Santro) was  rejected. The matter is now placed before us  for final hearing. 10.             We have heard learned counsel for the  parties. 11.             The learned counsel for appellants  contended that both the Courts committed grave  error in convicting the appellants. It was  submitted that when no case was proved by the  prosecution against them for offences  punishable under Sections 304B and 498A read  with Section 34, IPC, they ought to have been  granted benefit of doubt and could not have  been convicted under Section 302 read with  Section 34, IPC. Once it was held that it could  not be said that death of Santro was caused due  to demand of dowry, there was no other reason  to kill her. It was also submitted that there  was sufficient evidence on record in the form  of substantive evidence of DW1-Shero (real  sister of Santro) that the deceased was  suffering from Epilepsy and the said ailment  was responsible for her death and the  appellants cannot be convicted for any offence.  It was urged that finding of dead body from the  house of the accused does not necessarily  connect the appellants with the crime in  question. Finally, it was submitted that there  was no evidence to invoke Section 34, IPC as  there was no common intention on the part of  the accused in committing the crime and both  the Courts were in error in invoking the said

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provision. On all these grounds, it was  submitted that both the orders are liable to be  set aside. 12.             The learned Government Pleader, on the  other hand, supported the order of conviction  recorded by the trial Court and confirmed by  the High Court. According to him, the case was  of circumstantial evidence and the chain of  circumstances was full, complete and unbroken.  From the evidence of prosecution witnesses,  PW2-Lakhmi Chand, PW3-Sher Singh and PW4-Ganga  Singh, it was clearly established that there  was motive on the part of the accused to kill  deceased Santro. It has come on record that  Santro was not beautiful, she did not bring  sufficient dowry and finally she could not bear  a child. It has also come on record that a  complaint was made to village Panchayat and  several meetings were held. The Panchayat  intervened and finally the deceased Santro had  to be accommodated in the family and accused  Jagdish was compelled to  marry her by a karewa  marriage exchanging garlands. But the said act  was not approved by any of the accused persons  and had to agree to the marriage due to  intervention by the Panchayat which was the  root cause of trouble. This is also clear from  the fact that during the night time of May 1 &  2, 1998, she was all alone in the house at the  ground floor and all the accused persons were  on the roof. According to the learned  Government Advocate, taking advantage of the  situation, all the accused killed the deceased  by pressing her nose and mouth. The death due  to asphyxia by smothering was clearly  established by medical evidence on record. The  counsel also submitted that the conduct of the  appellants also went a long way in proving mens  rea and the case against them. Though there was  no electric connection, electric wire was put  near the dead body of deceased Santro to give  an impression to police that death was caused  due to electrocution. It was because of the  investigating officer\022s efforts that the  falsehood had come to light and it was  established that there was no electric  connection and death was not due to  electrocution but due to asphyxia by  smothering. Regarding evidence of Shero-sister  of deceased, it was submitted that though she  was sister of deceased Santro, she was married  to real brother of Raghbir Singh and Jagdish  and son of Bija and Sona Devi. Shero was  staying with her husband. Obviously, in the  circumstances, she was expected to support the  defence. Her evidence was, hence, rightly  discarded by both the Courts. Since all the  appellants had common intention to kill  deceased Santro, the Courts below were right in  ordering conviction of all of them under  Section 302 read with Section 34, IPC and no  interference is called for. The appeal,  therefore, deserves to be dismissed. 13.             Having heard learned counsel for the  parties, in our opinion, the appeal deserves to

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be partly allowed. From the evidence of  prosecution witnesses and the findings recorded  by both the Courts in the light of evidence of  PW9-Dr. Kakkar, it was proved beyond reasonable  doubt that the cause of death of Santro was  asphyxia due to smothering. An impression was  sought to be created by the accused that cause  of death was electrocution but from the  evidence of PW10-Inspector Gulzar Singh, the  possibility was ruled out. It was also  established from medical evidence that the  death was not due to ailment of Epilepsy. Both  the Courts, in our opinion, therefore, were  right in coming to the conclusion that death of  Santro was homicidal in nature and the cause of  death was Asphyxia due to smothering. 14.             The Courts below were right in not  relying upon the deposition of DW1-Shero and in  observing that she was under pressure as she  was staying at matrimonial home and with a view  to protect her, she deposed in favour of her  in-laws as she wanted to save them. In our  opinion, it could not be said that by drawing  such inference, the trial Court or the High  Court had committed any error. This is coupled  with the fact that a show was made by the  accused persons to mislead the police and  investigating agency by placing electric wire  near the dead body of deceased Santro and also  putting forward a ground of death as ailment of  Epilepsy, ruled out by medical evidence. 15.             There was motive on the part of the  accused in doing away with Santro. Though both  the Courts had not believed the case of demand  of dowry and cruelty towards deceased Santro  for non-payment of sufficient dowry by the  parents of deceased Santro in view of the  circumstance that another sister Shero married  to one of the brothers of Raghbir Singh had not  stated anything as to demand of dowry by the  accused persons and she was living at the  matrimonial home peacefully, it has come on  record that Santro was not good-looking lady.  Moreover, though her marriage was performed  with Raghbir Singh in 1988 along with Shero,  for about 10 years i.e. upto 1997, she could  not conceive and could not bear a child.  Raghbir Singh was totally indifferent and  abandoned her. So much so that complaints were  made by PW2-Lakhmi Chand (father of deceased  Santro) to Panchayat and Panchayat had to  intervene. In 1997, finally, the Panchayat  practically forced the family members of the  accused to accept Santro and keep her in their  family and it was because of the compulsion and  pressure of Panchayat that accused had to agree  to marriage between Jagdish and Santro. Thus,  there was every reason for the accused to be  unhappy with deceased Santro. This is further  clear from the fact that on the intervening  night of 1st and 2nd May, 1998, she was alone in  her room on the ground floor and the dead body  of deceased Santro was found in the morning of  May 2, 1998 from the house of the accused. 16.             But, there is no evidence that parents

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of the accused No.3-Jagdish i.e. accused Nos. 1  & 4 and former husband of the deceased-accused  No.2-Raghbir Singh had common intention to kill  deceased Santro and they were parties in  killing the deceased. It is no doubt true that  Jagdish, who was the present husband, had  grievance against Santro. He had to marry  Santro who was neither beautiful nor able to  bear child. The marriage was subsisting. After  Santro married to Jagdish in 1997, he was  unhappy as she could not conceive. Presumably  because of that, he was also indifferent  towards her and in the intervening night of May  1 & 2, 1998, he was not along with her in the  company of his wife in the room where she was  sleeping but was on the roof along with other  family members. But, in view of the fact that  accused Nos. 1, 2 & 4 could not be said to be  directly connected with the death of Santro, in  absence of clear evidence to that effect, the  Courts below could not have convicted them by  invoking Section 34, IPC. So-called extra  judicial confession by Smt. Sona Devi, accused  No.4 before Gaje Singh and Amar Singh has not  been proved. Direct, immediate and proximate  grievance at the relevant time was for accused  Jagdish. Hence, his conviction for an offence  punishable under Section 302, IPC recorded by  the trial Court and confirmed by the High Court  cannot be said to be contrary to law or  otherwise unlawful. But there was no sufficient  evidence as to common intention on the part of  the other accused in absence of requisite  material on record. In our considered opinion,  therefore, Section 34, IPC could not have been  invoked by the Courts below. To that extent,  therefore, both the judgments deserve to be set  aside. 17.             For the foregoing reasons, the appeal  deserves to be partly allowed as indicated  above and is so allowed. The judgment and order  of conviction and sentence recorded against  accused No.3-Jagdish (husband of deceased  Santro) for an offence punishable under Section  302, IPC is confirmed. Conviction and sentence  of accused Nos. 1-Bija, father-in-law, accused  No.4-Sona Devi, mother-in-law and accused No.2- Raghbir Singh-former husband of deceased Santro  by the aid of Section 34, IPC is set aside and  they are ordered to be acquitted. 18.             Ordered accordingly.