BIJA & ORS. Vs. STATE OF HARYANA

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-accused No.1. Whereas deceased
Santro married to accused No.2-Raghbir 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
(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 – 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 basis.

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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-Shero-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 smothering.

7.The trial Court held that both the
sisters-Shero 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.

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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
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 officers 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
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.

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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
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.

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