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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: HARI KISHAN & ORS.

DATE OF JUDGMENT:       26/09/1997

BENCH: G.T. NANAVATI, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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

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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

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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

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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

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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

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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.

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