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PETITIONER: TEJ PARKASH

       Vs.

RESPONDENT: THE STATE OF HARYANA

DATE OF JUDGMENT13/10/1995

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) MUKHERJEE M.K. (J)

CITATION:  1996 SCC  (7) 322        JT 1995 (7)   561  1995 SCALE  (5)734

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL.J.      This appeal  by special  leave is  directed against the judgment of the Punjab & Haryana High Court which has upheld the conviction  of the  appellant who  had been  held guilty under Section  302 I.P.C.  of murdering  his wife Geeta Devi and  had   been  awarded  life  imprisonment.  He  was  also convicted under  Section 201 I.P.C. and awarded imprisonment for two years.      The case of the prosecution was that the appellant, who is an  advocate by  profession, was married to Geeta Devi on 30.1.1982 at  Alwar. During  the marriage  ceremony, the in- laws of  the appellant stoped the photograpoher accompanying the marriage  party to  take the  photographs of the ladies. This was  not liked  by the  appellant who  over-reacted and took off  his ’sehra’  and threatened  to  walk-out  of  the ’mandap’ prior  to the performing of the wedding ceremonies. Ramjilal, his father-in-law, however persuaded him to resume his  seat.   After  the   marriage,  Geeta   Devi  had  been complaining to  her mother  that her  in-laws were not happy with the  dowry brought  by her.  On 14.11.1982,  Geeta Devi gave birth  to a son. As was customary, Geeta’s two brothers brought some  gifts which  were not  to the  liking  of  the appellant and his mother. Geeta tried to shield her brothers but the appellant slapped her and the said brothers informed the parents about this incidence.      The  appellant  and  Geeta  were  residing  along  with appellant’s parents  in the  house at  Mohalla Farash Khana, Narnaul. On  5.1.1983, the parents of the appellant had gone to Delhi  to meet  their other  son. The appellant was alone with his  wife Geeta  and their  infant son  at the house in Narnaul. At  about 5  P.M., Mehar  Chand P.W.  7 went to the house of  the  accused  to  have  some  professional  advice regarding some  house tax matter. He found appellant and his wife quarreling. The appellant told Mehar Chand, P.W. 7 that

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he would  see his  after sometime  as at  that time,  he was upset. Geeta was not seen alive thereafter. On 7.1.1983, the appellant went to police station, Narnaul at about 5.30 p.m. and lodged a missing report regarding his wife. On 8.1.1983, the appellant  sent a telegram to his father-in-law at Alwar that Geeta  was missing  and he  enquired  whether  she  had reached Alwar.      On 8.1.1983  at about  9.15 p.m. one Mala Ram Lambardar informed ASI Inder Singh P.W. 21 who was on patrol duty that a dead  body of a female who was suspected to be the missing wife of  the  appellant  was  floating  in  a  well  in  the dharamshala  of  Kishan  Sahai.  Mala  Ram’s  statement  was recorded by  ASI Inder  Singh who  forwarded the  same along with his  endorsement to  the police station on the basis of which Daily  Diary Report  No. 31  (Ex. PY/2) was entered at the  police   station,  Narnaul.  A.S.I.  Inder  Singh  then proceeded to  the said well so that the arrangments could be made  for   taking  out  the  dead  body  that  night.  Some identified person  telephoned Ramesh  Chand Soni  P.W. 11 at 9/10 P.M.  on 8.1.1983  informing him  that the dead body of Geeta had  been recorvered  from the well. Ramesh Chand Soni requested the  caller not  to cremate the dead body till the relations of  Geeta reached  Narnaul. Ramesh Chand Soni then went to  Ramjilal, father  of Geeta  and delivered  him  the aforesaid message whereupon Ramjilal along with Ramesh Chand Soni and  Durga Parshad  left for Narnaul by car and reached there in  the morning where they found the police present at the house of the appellant. The dead body was then taken out from the  well in  their presence  by Giarsi  Lal P.W. 6 and Phool Singh.  The dead  body was  photographed before  being taken out  of well  as well  as after it had been taken out. The eye  balls as  well as  the tongue  of the deceased were protruding out  and there  were also  some  other  marks  of injuries. The said body was identified by the father and the cousin of  the deceased.  ASI Inder  Singh then recorded the statement of  Ramjilal P.W.  15 and  sent the  same to  P.S. Narnaul for  the  purpose  of  registration  of  case  under Section 306  I.P.C. ASI  Inder Singh also prepared a inquest report and  sent the  dead body for post-mortem examination. After the  result was  received by the investigating agency, the case  was converted  from one  306 I.P.C.  to one  under Section 302  I.P.C. A  search was made for the appellant but he was not available.      The prosecution  alleged that the appellant had gone to Bhagirath P.W.  16 on 10.1.1983 and he made an extrajudicial confession before him and one Hardayal. He is further stated to have been requested them to intercede with his father-in- law and  get a  compromise effected.  They  accompained  the appellant to Narnaul where the appellant was produced before the police  and he  was put  under arrest.  On completion of investigation, the  police presented  the  charge-sheet  for offences under  Sections 302  and  201  I.P.C.  against  the appellant.      During the course of trial, Durga Prashad, Ram phal and S.I. Ram  Kishore  were  given  up  by  the  prosecution  as unnecessary and  Nathi Ram as having been won over. Ram Phal was nevertheless examined as a court witness as C.W.1 at the request of  the counsel  for the  appellant. The prosecution relied upon  the evidence  of the  relations of the deceased including  Ramjilal   P.W.  15  about  the  conduct  of  the appellant at  the time  of his marriage, the greed exhibited by him  and  his  parents  when  they  asserted  that  Geeta deceased had  brought insufficient  dowry and gifts given to her at  the time  of her  child birth which were regarded by them as  insufficient. Mehar  Chand P.W.  7 was  produced to

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show that  the appellant was last seen in the company of the deceased at  his house on 5.1.1983 at about 5 p.m. Bhagirath P.W.  16   was  relied   upon  to  prove  the  extrajudicial confession  by  the  appellant  before  him.  The  appellant admitted his  marriage with Geeta Devi deceased. He admitted his signatures  on the report dated 7.1.1983 lodged with the police station,  Narnaul but  stated  that  the  report  was dictated by  some of his companions as he was too puzzled to utter even  a word. He also admitted having sent telegram to his father-in-law  at Alwar on 8.1.1983. He denied the other circumstances  apearing   against  him   as  incorrect.  The appellant then  stated that his relations with his wife were normal; there was no dispute either on the question of gifts on the  child birth  nor any  mal-treatment meted out to her from his  side. On  5.1.1983  he  left  for  the  court  and returned in  the evening.  He learnt  from  members  of  the family including his sisters that Geeta Devi had gone to see a friend  and to  deliver a  letter.  Geeta  Devi,  however, failed to  return which  made him  and other  members of the family anxious  and a  search was  started for  her  in  the houses of  friends and relations. Some persons were sent out to trace  out Geeta  Devi. A  large number of his colleagues and friends  visited his  house to enquire about his missing wife.  The   enquiry  included  questions  regarding  dress, ornaments, habits, condition, health, relations with in-laws and all  other things  which could  help in tracing her out. The information  was readily  given. He  was advised  by his friends to wait for a day before reporting the matter to the police. However,  when Geeta  Devi failed to turn up even on 7th January,  1983, appellant  felt completely  puzzled  and mentally broken.  Some of  his friends  took him  to  police station  for  lodging  a  missing  report.  The  report  was actually dictated by some of his companions which was signed by him.  On 8.1.1983,  he learnt  that the  dead body of his wife had  been discovered  in the  well. He along with other relations was  present when the dead body was taken out. The dead body  was cremated  by him and he lit the funeral pyre. From  there,   he  was   taken  away   by  the   police  for interrogation though on papers, his arrest was delayed.      The medical  evidence was relied upon to show the cause of death.  The post-mortem was conducted by a board of three doctors consisting of Dr. K.C. Jain P.W. 1, Dr. J.L. Bhutani P.W. 9 and Dr. O.P. Poddar P.W. 4. It was, inter alia, noted in the  report that  the dead  body was  of a female who was identified as  Geeta Devi  wife of Tej Parkash aged about 23 years. The length of the body was 5 feet 2 inches. There was a reddish  contusion 4  1/2 inches  in width in front of the upper part of the chest and lower part of the neck extending from the  right of the left shoulder. On the back, there was reddish  contusion   of  3"   width  near  the  shoulder  in continuation of  contusion in  front.  The  under-lined  sub cutanous tissues  were ecchymosed, hyoid bone was fractured. The body was of a young, moderately built female wearing one cream coloured  sweater, one  blouse, brassiere,  petticoat, red underwear and some jewellery. The face was congested and swollen.  Tongue  and  eye  balls  were  protruding.  Bloody discharge was  coming out  of the  nostril. Rigor mortis was absent. Post-mortem  lividity was  present on  the dependant parts. There  was greenish  discolouration  present  on  the abdomen and  medical aspect  of things  and nails  could  be peeled off.  Scalp and  skull were  healthy. Membranes  were congested. Brain  was liquified.  Chest was healthy. Pleurae was healthy.  Laryns and  trachea were healthy and right and left lungs  were  healthy  and  congested.  Pericardium  was healthy. She was also having the below noted injuries:-

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1. Contusion as already described. 2. Reddish  contusion 7  c.m. x  3 c.m.  on the  side of the face. 3. Reddish  contusion 6  c.m. x  4 c.m. on the right side of chest. 4. Reddish  contusion extending  from the  middle of  medial aspect of leg to the middle of thigh varying in depth 2 1/2" x 3". 5. 2 c.m. x 3 c.m. contusion on front of middle of chest.      In  the  opinion  of  the  Doctors  all  injuries  were antemortem in  nature.  Abdominal  wall  was  distended  and greenish discolouration  was present.  Uterus was protruding out slightly.  In the  opinion of the Doctors, death was due to asphyxia on account of strangulation which was sufficient to cause  death in  the ordinary  course of nature. Duration between injury and death was between few minutes and between death and  post-mortem examination,  it was  between 2  to 4 days. Dr.  K.C. Jain  P.W. 1  clarified that  injury  No.  1 namely, fracture  of the hyoid bone was sufficient by itself to cause  death in  the ordinary  course of nature. Dr. O.P. Poddar P.W.  4 was  tendered for cross-examination. Dr. J.L. Bhutani P.W. 9 proved the post-martem examination report and stated that  the fracture  mentioned in  injury No. 1 in the post-mortem  examination   report  was   sufficient  in  the ordinary course of nature to cause death and the said injury was ante-mortem in nature.      Before the  Trial Court, efforts were made to show that the fracture  of the hyoid bone could have occurred when the dead body  was taken  out of  the well.  In this connection, reference was made to the statement of Giarsi Lal P.W. 6 who along with one Phool Singh was engaged as a labourer to take out the  dead body  from the  well. In  his  examination-in- chief, Giarsi  Lal P.W.  6 stated  that he tried to lift the dead body  by holding  the side  of the  head which  slipped three times  and it  was only  in the  third attempt that he succeeded in holding the dead body from the side of the head and it  was brought  out. On  his being declared hostile, he was brought  out. On  hsi being  declared  hostile,  he  was allowed to  be cross-examined  by the Police Prosecutor. The Trial Court  came to the conclusion that Giarsi Lal had gone out of  the way  to toe  the line  of the  accused  and  his statement that he tried to take out the dead body by holding it from  the head wa a clear attempt to help the accused and the same could not be believed.      Reference was  also made  to the  statement of Dr. J.L. Bhutani P.W. 9 who had stated about the possibility of hyoid bone fracturing  in the process of the dead body being taken out with  the help  of neck either by pulling it with a rope or with  hands could  not be  ruled out. He, however, stated that the assocaited injury could help in determining whether the fracture  was ante-mortem  or post-mortem in nature. The Trial Court  found on  the basis  of evidence  that both Dr. K.C. Jain  and Dr.  J.L. Bhutani had admitted that no injury was found  on the  seat of  fracture of  hyoid bone.  In his croos-examinaiton, Dr.  K.C. Jain  P.W. 1 had stated taht it was not  necessary that  applicaiton of  force on  the  neck resulting in  fracture of  hyoid bone must leave ecchymosis. He explained  that direct  force can  result in  fracture of hyoid bone  firstly by  applying force  on chest upwards and secondly, by  plaicng a  cloth padding between the force and the neck.  It was  put to him that ecchymosis at the seat of fracture of  the hyoid  bone could  also occur if the person were to  fall from  height on  surface of water to which Dr. Jain replied  in the negative. From the cross-examination of the doctors,  therefore, hyoid  bone could  be fractured  by

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indirect application of force, i.e. on the chest upwards and absence of  finger marks on the neck could also be explained if a cloth padding was used between the hands and the neck.      The Trial  Court cmae  to the  conclusion that death in this case was due to strangulation with ante-mortem injuries including fracture  of hyoid  bone and  that the  death  had taken place  two to  four days between death and post-mortem and this corroborated the prosecution case that teh deceased was murdered  on the evening of 5.1.1983 and the post-mortem report  was  carried  out  on  9.1.1983.  The  Trial  Court, therefore,  concluded  that  the  theory  of  suicide  stood negatived firstly  by the  presence of  injuries which  were ante-mortem in  nature; secondly,  there was  no material on record indicating  any suicidal  tendency on the part of the deceased and thirdly, it was well known that ladies are very much attahced to their children and Geeta Devi and a son who was only  about  seven  weeks  old.  In  the  absence  of  a compelling reason,  therefore, she  would normally  like  to live if for nothing else for the sake of her child.      On the  perusal of  evidence on record, the Trial Court further came  to the  conclusion that  the  parents  of  the appellant were  not present  when the  offence was committed and, secondly,  the conduct  of the  accused was not such as may be  consistent with  his innocence  and thirdly, he made efforts to  crete evidence  that the   deceased  was missing with a  view to  suggest that  she had  gone away  to commit suicide. He  made efforts to try to create piece of evidence which would  ultimately support his innocence and the theory that his wife was mentally ill and has committed suicide but the same  was false  to his  knowledge. The Trial Court also accepted  and  relied  upon  the  extra-judicial  confession stated to  have been made to bhagirath P.W. 16 on 10.1.1983. It may  here by mentioned that the Trial Court did not think it sufficient  to bas a conviction on the testimony of Mehar Chand P.W.  7 to  whom also  extra-judicial  confession  was allegedly made.  On the basis of the evidence of the parents of the deceased, the Trial Court came to the conclusion that hte prosecution  had clearly  established the motive against the  accused.  The  other  factors  which  were  taken  into consideraiton by  the  Trial  Court  were  that  he  accused according to  his own admission in the report dated 7.1.1983 made to  the police  was last  seen with  the  deceased  and thereafter the  dead body of the deceased was recovered from the well.  There was  also proximity of the said well to the house of  the appellant at Narnual, the distance between the well and  the house only being less than 100 feet. The shawl and sandals  of the  deceased were  also  recovered  at  the instance of  the accused and this, the Trial Court held also corroborated the prosecution case.      Keeping in  mind the  well  settled  principle  that  a conviction could  be  based  in  a  case  of  circumstantial evidence  only   if  the  circumstances  proved  were  of  a clinching nature,  the Trial  Court came  to the  conclusion that the prosecution clearly established circumstances which taken  together   consitutied  a   complete  chain  and  the prosecution had  clearly established  the charge against the accused. The  conclusion which  was arrived  at by the Trial Court was  that the  appellant caused  the death  of the his wife Geeta  Devi by  strangulation and it must have been the appellant and  none else who threw her dead body in the well to screen himself from legal punishment.      The appellant filed an appeal against the award of life imprisonment on  his conviction  under Section 302 I.P.C. by the  Trial  Court  and  the  award  of  two  years  rigorous imprisonment under  Section  201  I.P.C.  It  was  contended

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before the  High Court that Geeta Devi had committed suicide by jumping  into the  well. In order to explain the fracture of hyoid bone, reference was made by the appellant’s counsel to the  statement of  Giarsi Lal P.W. 6 in an effort to show that the  fracture took place at the time when the dead body ws being  pulled out  fom the well. The High Court, however, came  to   the  conclusion   that   the   medical   evidence unmistakably pointed  out to  the fact that the deceased had been strangulated to death and she had not committed suicide by jumping  into the  well. As  far as  Giarsi Lal P.W. 6 is concerned, the  High Court  concluded that  the said witness had probably  been won  over by  the appellant. After taking the entire  evidence into  consideration and  examining  the contentions raised  on behalf  of the  appellant,  the  High Court observed as follows:      "To sum up there is unmistakableevidnece      on the record that --      i) The  appellant and  his parents  were      dissatisfied with  the dowry  broght  by      the decased.      ii)  They   also  complained  about  the      insufficieny of the gifts brought by the      brothers of  the deceased at the time of      the chhuchhak ceremony.      iii) The  appellant was  an ill-tempered      man. Not  only that,  he  also  used  to      censor the  letters of  the deceased  so      that  she   may   not   convey   written      information to  her  parents  about  the      ill-treatment meted  out to  her at  the      residence of her in-laws.      iv) The  deceased  was  strangulated  to      death and  the appellant  lodged a false      report with the police that the deceased      was missing.  He did  this in  order  to      cover  up  his  own  committed  criminal      acts.      v) After  the commission  of the  crime,      the appellant  became panicky  and  took      steps to  have the  matter settled  with      his father-in-law  and when he failed to      do  so   he   made   an   extra-judicial      confession before Bhagirath P.W. 16.           This     evidence      conclusively      establishes the guilt of the appellant.      While deciding  the appeal,  the High  Court took  into consideration that  the appellant  was an  educated man  who belonged to  the legal  profession and  Ramjilal P.W. 15 had spent considerable  sum of money at the time of the marriage of the deceased and also when the ceremony took place on the birth of  the child.  The appellant  was, accordingly,  also ordered to  pay a  fine of  Rs. 1,00,000/-  so that Ramjilal P.W. 15 could be compensateld to some extent. Mr. Ganesh, learned counsel for the appellant contended that this is  a case of circumstantial evidence and all the links in the chain are not established. He tried to point out that there was  a contradiction in the testimonies of two doctors namely,  Dr.  K.C.  Jain  and  Dr.  J.L.  Bhutani.  He  also submitted that  the third  member of the Board who conducted the post-mortem  namely, Dr.  O.P. Poddar  should have  been examined. The  further contention  wa that  when prosecution has cited  a witness  and if  he is subsequently given up as having been  won over, then this causes serious prejudice to the defence  and amounts  to violation  of the  principle of natural justice.

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    The effort  of  Mr.  Ganesh  obviously  was  to  trying persuade this  Court to re-appraise the evidence and come to a different conclusion. We find that the Trial Court as well as the High Court were conscious of the fact that this was a case of  circumstancial evidence.  Keeping in  view the well established principles in mind the concurrent findingarrived at by  both the  courts below  was that  the  appellant  was guilty  of  murdering  his  wife.  We  have  also  carefully examined the  record and  we do not find that the concurrent findidngs call  for re-appraisal  of the  evidence. This  is more so  when we  find that  the post-mortem  report coupled with the  medical evidence  reached only  to one  conclusion namely, that  homicide and  not suicide  had resulted in the death of  the appellant’s  wife. It  was contended  that the evidence  of   Dr.  Bhutani  P.W.  9  did  not  support  the prosecution inasmuch  as it  was deposed by Dr. Bhutani that the possibility  of hyoid  bone fracturing in the process of the dead-body  being taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this  context, Mr.  Ganesh referred  to the  evidence  of Giarsi Lal P.W. 6 who had stated  that when he tried to lift the dead  body while  taking it  out of  the well,  the head slipped thrice.  Both the  courts below  have not  rount the witness Giarsi  Lal P.W. 6 as reliable and his testimony has been rejected.  As far as the evidence of Dr. Bhutani P.W. 9 is concerned,  we do not find that the same is in any way in conflict or  at variance with the post-mortem report. In the post-mortem report,  it has been stated that the injuries on the body  of he  deceased were  ante-mortem in nature. There was a  fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L.  Bhutani stated  that the said injury by itself was sufficient to  cause death in the ordinary course of nature. In two  specific questions,  Dr. Bhutani  P.W. 9 stated that "in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of  the deaceased  as described.  If the  injuries as descirbed on  the deceased  were absent,  there was  a  rare possibility that  it  might  not  have  been  impossible  to determine whether death was on account of drowning". In view of this  categorical staement,  an observation  made by  the witness that  possibility of  hyoid bone  fracturing in  the process of  dead body  being taken  out does  not in any way weaken the  prosecution case.  This was  only his subjective opinion and  does not  run counter  to the objective part of the post-mortem report namely, that the death was caused due to fracture  of hyoid  bone and  the said  injury was  ante- mortem in  nature. None  of the  symptoms which  attached to death by  drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in his examinaiton- in-chief had  categorically stated  that the fracture of the hyoid bone  was ante-mortem  in nature and this corraborates the evidence  of Dr.  K.C. Jain  P.W. 1 as well as the post- mortem.      As far  as Dr.  O.P. Poddar  is concerned,  he was only tendered   for    cross-examination   without    his   being examination-in-chief.  Though,   Dr.O.P.  Poddar   was   not examined-in-chief, this procedure of tendering a witness for cross-examination is  not warranted  by law.  This Court  in Sukhwant Singh  Vs. State  of Punjab, 1995(2) Scale 482 held that permitting  the prosecution  to tender  a  witness  for cross-examination only  would be  wrong and  "the effect  of their being  tendered only  for cross-examination amounts to the failure  of the  prosecution  to  examine  them  at  the trial". In the present case, however, non-examination of Dr. O.P. Poddar  is not  very material  because the  post-mortem

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report coupled  with the testimonies of Dr. K.C. Jain P.W. 1 and Dr.  J.L. Bhutani  P.W. 9  was sufficient  to enable the courts to come to the conclusion about the cause of death.      In support of his contention that serious prejudice was caused to  the appellant  by non-examination  of Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh  relied upon  Stephen Senivaratne  Vs. The  King, A.I.R. 1936  P.C. 289,  Habeeb Mohammad  Vs.  The  State  of Hyderabad, 1954 (5) S.C.R. 475 and State of U.P. and another Vs. Jaggo  Alias Jagdish  and others,  971(2) S.C.C. 42. The aforesaid decisions  can be  of  little  assistance  to  the appellant in  the present  case. What  was held by the Privy Council and this Court was that witnesses who were essential to the  unfording of  the narraitve on which the prosecution is based  must be  called by  the  prosecution  whether  the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a  fair trial.  It was  also observed  that  all  the witnesses of  the prosecution  need not  be called.  In  the present case,  the  witnesses  who  were  essential  to  the unfolding of  the narrative  had been  examined. One  of the facts which  had to  be estalished  was that the body of the deceased was found in the well and the same was taken out by two labourers,  namely, Giarsi  Lal P.W.  6 and Phool Singh. The fact  that this  body was  recovered from  the well  was proved by  Giarsi Lal  P.W. 6,  amongs other  witnesses, and Phool Singh  who had  apparently been cited as a witness for the same  purpose  was  not  examined.  His  non-examination cannot  be   regarded  as   causing  any  prejudice  to  the appellant. Out  attention was  also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another Vs. State  of U.P., 1990 Crl. L.J. 980 where it was observed that the  mere  allegation  that  some  witnesses  were  not prepared to  support the  prosecution case  and had been won over by  the  accused  would  not  be  sufficient  and  that opportunity should  be given  to the  court to  assess their evidence and  to come to such a conclusion. In that case the witnesses given  up had  been named as being the eye witness to the  incidence and  it is  in that context the Court made the aforesaid  observation. Non-examination of a witness who had been  cited by the prosecution would of course result in an adverse inference being drawn in view of Illustraiton (g) of Section  114 of  the Evidence  Act and  may in some cases even caused  prejudice to  the defence,  but in  the present case, Phool  Singh who  merely recovered  the body  from the well along  with Giarsi Lal P.W. 6 was not such an important witness whose  non-examination could  be said to have caused any prejudice to the appellant.      In  out  opinion,  the  judgment  opf  the  High  Court warrants  no   interference.  Accordingly,   the  appeal  is dismissed. The  appellant will  surrender to  his bail-bonds and serve out his sentence in accordance with law.