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Sunil Duggal & Ors. vs State on 25 February, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 19.12.2018
Date of Decision : 25.02.2019

+ CRL.A. 146/2004
SUNIL DUGGAL ORS. ….. Appellants
Through Mr. Nitin Sehgal, Advocate
Mr. Ashok Soni, Advocate

versus
STATE ….. Respondent
Through Mr. Amit Gupta, APP

CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

MANOJ KUMAR OHRI, J.

1. Three appellants had jointly filed the present appeal against the

impugned judgment dated 11.02.2004, passed by the learned Addl.

Sessions Judge, Delhi in Sessions Case No.86/90, arising out of FIR

No.82/89, registered at Police Station Nabi Karim, Delhi, convicting them

for the murder of Sushma, sister-in-law of appellant no.1, daughter-in-law

of appellant no.2 and wife of appellant no.3 punishable under Sections

302/34 IPC and Sections 498-A/34 IPC. As per the order on sentence dated

13.02.2004, the appellants were sentenced to undergo imprisonment for

life with a fine of Rs.15,000/- each and in default of payment of fine, to

Crl.A.146/2004 Page 1 of 32
further undergo R.I. for six months under Section 302/34 IPC. The

appellants were also sentenced to undergo R.I. for three years under

Section 498-A/34 IPC with fine of Rs.5,000/- each and in default of

payment of fine, to further undergo R.I. for four months. The fourth

accused, Subhash Duggal was acquitted of all the charges framed against

him. The fifth accused Mahender Nath Duggal had expired during the trial.

During the pendency of the present appeal, the appellant No.2, i.e., Asha

Rani Duggal also expired on 17.01.2014 and vide order dated 29.05.2014,

it was recorded that the appeal stands abated qua the said appellant. Now

the present appeal is confined to the appellant No.1 and appellant No.3

only.

2. As per the prosecution case, Krishan Kumar Chopra, complainant

in the present case had brought up Sushma, an orphan and got her married

to the appellant no.3, Ajay Duggal. On 13.03.1989, Krishan Kumar

Chopra received a call from Sunil Duggal informing him that Sushma had

expired. He reached the matrimonial home of his niece and found her dead

body on a dirty sheet near the bathroom. He also noticed some marks on

the neck of the deceased and it appeared to him that Sushma had been

strangulated. In the meantime, information was also received at the local

Police Station from the PCR at about 11:45 am to the effect that a lady has

Crl.A.146/2004 Page 2 of 32
been poisoned to death in House No. AB-236, Amar Puri, Nabi Karim,

Delhi. The said information was recorded as DD 19A (Ex.PW-1/E). SI

Jagjit Singh (PW-42) and HC Hari Singh (PW-4) reached the spot.

Simultaneously, Inspector Tulshi Ram (PW-43) also reached the spot. As

the death had occurred within one year of the marriage, SDM, Punjabi

Bagh, Mr. Vipul Mittra (PW-28) was called at the spot, who recorded the

statement of Mr. Krishan Kumar Chopra (Ex.PW-1/A and Ex.PW-43/A).

Inspector Tulshi Ram (PW-43) made his endorsement and the rukka was

sent through HC Hasmat Khan (PW-18) to the Police Station for

registration of a FIR against all the appellants under Section 302 and 498-

A IPC.

3. Investigation was carried out. Inspector Tulshi Ram (PW-43)

prepared the unscaled site plan (Ex.PW-43/B). The Investigating officer

lifted samples from the spot for analysis which included a lady’s brown

coloured shirt and salwar, synthetic brassiere and a light blue coloured

chunni. The dead body of Sushma was sent for post mortem which was

conducted at 9:30 am on 14.03.1989. The post mortem report (Ex.PW-

31/A) opined that the cause of death was “death due to asphyxia resulting

from strangulation”. In the meantime, the appellants and the other co-

accused were arrested.

Crl.A.146/2004 Page 3 of 32

4. In order to prove its case, the prosecution examined 45 witnesses in

all. The material witnesses included Krishan Kumar Chopra, uncle of the

deceased (PW-3); Rajinder Kumar Chopra, cousin of the deceased

(PW-6); Surender Kumar Chopra, cousin of the deceased (PW-20);

Minakshi, sister of the deceased (PW-34); Shamma Chopra, sister-in-law

of the deceased (PW-21) and Goverdhan Malhotra, uncle of the deceased

(PW-9). Another witness, Sunder Dass Malhotra was examined as PW-8.

However, his testimony could not be completed and he was never offered

for cross-examination. The prosecution also examined N.K. Sharma (PW-

15), Mangal Singh (PW-16), Ramesh Kumar (PW-19), Rakesh Kapoor

(PW-25), Raj Kapoor (PW-26) and Krishan Kumar Chopra (PW-3) to

prove the factum of the marriage of Sushma with Ajay Duggal as well as

the articles that were purchased and given at the time of the marriage. Two

neighbors, namely, Ganga Bassi and Richhapal Singh were examined as

PW-40 and PW-41 respectively.

5. The scaled site plan was proved by Inspector Devinder Singh (PW-

32). Dr. J.K. Gupta, who had examined the deceased at the first instance,

was examined as PW-5. Dr. Atul Jain, a Consultant with Sanjeevan

Nursing Home, who had examined the deceased, Sushma on 13.03.1989,

at 1:30 p.m. was examined as PW-38 but he turned hostile. The Post

Crl.A.146/2004 Page 4 of 32
Mortem Report was proved by Dr. R.P. Saraswat (PW-31) and Dr. D.N.

Sharma (PW-39). Dr. S.C. Mittal (PW-44) had given his opinion on

handwriting on the letters allegedly stated to have been sent by Sushma to

her uncle. The Trial Court, however, did not place any reliance on the said

letters. Sh. C.K. Jain, Sr. Scientific Officer, CFSL (PW-45) proved his

opinion about the chunni (Ex.PY). Insp. Tej Rani, from CAW Cell was

examined as PW-33 and Insp. Tulshi Ram, Investigating Officer, was

examined as PW-43. The accused also examined two witnesses in their

defence. Initially, joint statements of the appellants were recorded under

Section 313 Cr.PC. However, subsequently, separate statements of each of

the appellants were recorded under Section 313 Cr.PC wherein they

claimed innocence and false implication in the case.

6. Arguments were heard from both the sides. Mr. Nitin Sehgal, Ld.

counsel for the appellant has contended that Mr. Vipul Mittra, SDM (PW-

28) gave directions for registration of the FIR even before completing the

inquest proceedings which have resulted in causing grave prejudice to the

appellants; that there are no specifics as to who demanded the dowry and

when the said demands were made; that there is no evidence of any dowry

given at the time of the marriage; that the complaint of the deceased with

the CAW Cell and the subsequent compromise arrived at between the

Crl.A.146/2004 Page 5 of 32
parties is silent about any alleged demand of Rs.10,000/- or scooter; that

there was no allegation of any demand made after the compromise; that

the medical evidence, as far as ligature mark is concerned, is contrary to

the prosecution case; that strangulation can be a result of either suicide or

homicide; that the conduct of the appellant No.3, Ajay Duggal of attending

a lunch hosted a day prior to the death of Sushma shows that the relation

between them was not strained; that the conduct of the appellant No.1 of

calling the Doctor on seeing the condition of Sushma runs contrary to the

prosecution case; that there have been contradictions and improvements in

the statements of the prosecution witnesses; that even if the appellants had

not been able to explain the circumstances of the death of Sushma that had

occurred within their house, Section 106 of the Indian Evidence Act cannot

be invoked; that there was delay in registration of the FIR and that the

accused/appellants have been falsely implicated in the present case.

Relying on the testimonies of PW-40 and PW-41, it was further argued

that the appellants were not present at the spot at the time of commission

of the alleged murder and that since the plea of alibi taken by the other

accused, Subhash Duggal was accepted by the Trial Court, the appellants

ought to have been given the benefit of the said plea. In support of his

pleas, learned counsel for the appellants has relied on the judgments in

Narender Singh Arora vs. State (Govt. of NCT Delhi) Ors. (2010) 173

Crl.A.146/2004 Page 6 of 32
DLT 244; State vs. Naved UR Rehman (2016) 229 DLT 711; Mohd.

Wakil vs. State 2018 SCC Online Del 11242 and Suhaib Ilyasi vs. State

2018 SCC Online Del 11654

7. On the other hand, Mr. Amit Gupta, Ld. APP for the State strongly

supported the impugned judgement passed by the learned Trial Court and

prayed for dismissal of the appeal. In support of his submissions, he had

relied on Trimukh Maroti Kirkan vs. State of Mahrashtra (2006) 10 SCC

681.

Analysis

8. The present case is based on circumstantial evidence. The facts

which have not been disputed are as follows:

(i) The marriage between Ajay Duggal and Sushma was solemnized

on 19.04.1988.

(ii) After the marriage, Sushma stayed at her matrimonial home i.e.

at House No. AB-236, Amar Puri, Nabi Karim, Delhi.

(iii) The appellants were residing jointly in the above house.

(iv) On 13.03.1989, Sushma expired at her above matrimonial home.

Crl.A.146/2004 Page 7 of 32

9. The prosecution has cited demands of dowry by the appellants as a

reason for the continuous harassment of Sushma due to which she had

ultimately filed a complaint against them before the CAW Cell.

Demand of dowry and harassment

10 Krishan Kumar Chopra, uncle of the deceased was examined as

PW-3. He deposed that Sushma was the daughter of his sister-in-law. She

was living with him since the year 1986, on the demise of her parents.

They had got her married to Ajay Duggal on 19.04.1988. At the time of

the marriage, he had given dowry with contribution made by other

relatives. Everything was normal for the initial 2-3 months. When PW-3

asked Sushma about the reason of her unhappiness, she told him that her

in-laws were demanding dowry. She was also beaten by all the appellants

for not bringing a scooter and VCR. He made attempts to reconcile the

dispute between the couple but the harassment of Sushma had continued.

He further deposed that Sushma had filed a complaint before the CAW

Cell on 20.10.1988 and after 4-5 hearings, a compromise (Ex.PW-3/DA)

was arrived at between the parties with the intervention of relatives. Even

thereafter, the harassment of Sushma had continued at the hands of all the

appellants. On 11.03.1989, Sushma came to his house and narrated her

ordeal that she was locked in a room, without any food and was beaten

Crl.A.146/2004 Page 8 of 32
quite often. On 12.03.1989, a lunch had been organised at the house of a

relative. Ajay came to attend the lunch and while going back, took Sushma

along with him despite her unwillingness to accompany him. On the very

next day, i.e. on 13.03.1989, the witness was informed by the appellant

no.1, Sunil Duggal that Sushma had expired. When he reached Sushma’s

house, he found her body lying on a dirty sheet near the bathroom. He also

noticed some injury marks around the neck of Sushma. He proved his

statement made to the SDM as Ex.PW-3/D. In his cross-examination, not

a single question was put to him that no dowry articles were given at the

time of Sushma’s marriage. The confrontation was with respect to the

demand of a VCR but not for the demand of scooter or cash of

Rs.10,000/-.

11. The deposition of the other witnesses i.e. PW-6, PW-9, PW-20, PW-

21 and PW-34 is cumulative to the deposition of PW-3, on all material

aspects. PW-20 proved his earlier statement made to the police, as Ex. PW-

20/DA, where demands of scooter and cash were mentioned. PW-34 was

confronted with her earlier statement made to the police (Ex. PW-34/DA)

where demand for a scooter was mentioned. All the witnesses consistently

stated that there was a demand of Rs.10,000/- and a scooter by the

appellants. Though PW-6 mentioned the amount as Rs.25,000/- and

Crl.A.146/2004 Page 9 of 32
PW-34 did not mention the specific amount that had been demanded, these

can hardly be treated as major contradictions in the testimonies.

Complaint dated 20.10.1988.

12. The complaint filed by Sushma (Ex.PW-33/A and Ex.PW-44/B)

was proved by Inspector Tej Rani, who appeared as PW-33. In the said

complaint, Sushma had named all the appellants at whose hands she was

being harassed for not bringing more dowry. It was also mentioned that

she was threatened, locked and beaten in a room and kept hungry for 2-3

days. She stated that the appellant no.3, Ajay had threatened to divorce

her. She described as to how the appellants never wanted to send her on

her sister’s marriage fixed for 18.10.1988. She concluded by stating that

she apprehended a threat to her life from all the appellants, especially from

Sunil Duggal and Subhash Duggal. Enclosed with the complaint was a list

of articles (Ex.PW-3/A) given to the appellants at the time of Sushma’s

marriage with Ajay Duggal.

13. With reference to the complaint and the subsequent compromise

dated 13.11.1988 (Ex.PW-3/DA), the prosecution had examined Darbari

Lal Chandhu as PW-30, who deposed that he was an uncle of one Som

Nath, a friend of both the appellant Nos. 1 and 3. PW-30 deposed that both

the appellants had approached him and informed him about the dispute

Crl.A.146/2004 Page 10 of 32
pending in the Dowry Cell. Due to his intervention, the said dispute

pending in the Dowry Cell was resolved in November, 1988 and he

requested the appellants to keep Sushma nicely. In his cross-examination,

PW-30 denied the suggestion made that the appellants never approached

him.

14. Insp. Tej Rani who had investigated the complaint filed by Sushma

in the CAW Cell, was examined as PW-33. She deposed that the

compromise between Ajay Duggal and Sushma was filed before her. In

her cross examination, a suggestion given to the witness that no such

complaint was received in the CAW Cell, was denied by her. In fact, Kanta

Devi, a defence witness, while appearing as DW-1, also confirmed that a

complaint was lodged by Sushma in the Dowry Cell which was resolved

amicably. Even the appellants, during their examination under Section 313

Cr.PC, while answering question No.34 had replied that though Krishan

Kumar Chopra (PW-3) had filed a complaint but Sushma had on her own,

gone to the CAW Cell and withdrawn the said complaint. It is noteworthy

that no such suggestion was given by the accused either to Krishan Kumar

Chopra or to any other witness during the cross-examination.

Crl.A.146/2004 Page 11 of 32

15. From the testimonies of the witnesses and the complaint filed before

the CAW Cell, it stands established that Sushma was tortured and harassed

for dowry by the appellants.

Conduct of the appellants

16. The prosecution has also relied upon the conduct of the appellants

especially appellant no.3 towards Sushma and her family to prove that they

were not happy as their demand for dowry had not been fulfilled by the

deceased and her family members.

i) Marriage of the victim’s sister, Minakshi on 18.10.1988

17. In her above complaint to CAW Cell, Sushma had also mentioned

about the fact that none of her in-laws attended the marriage of her sister,

Minakshi. The marriage of Minakshi, sister of Sushma was solemnized on

18.10.1988. From the evidence on record, it is established that Sushma

came to her uncle’s house on 13.10.1988 to attend the marriage of her

sister. Neither the appellants, nor anyone from their family had attended

the said marriage. It was Sushma’s family that had taken her to attend the

marriage. After attending the marriage, Sushma came back to her uncle’s

house. Had Ajay Duggal or his family members attended the marriage,

Sushma would not have returned to her uncle’s house. Rather, she would

have gone to her matrimonial home. In these circumstances, Sushma filed

Crl.A.146/2004 Page 12 of 32
the complaint before the CAW Cell on 20.10.1988, two days after the

marriage of her sister.

ii) Lunch organized on 12.03.1989

18. PW-3, Krishan Kumar Chopra deposed that Sushma had come to

his house on 11.03.1989, on which date she told him that the appellants

used to confine her in a room and not even provide her food. She was

treated worse than a servant. She also stated about the beatings given to

her by the appellants.

19. From the testimonies of PW-3, PW-6, PW-9, PW-20, PW-21 and

PW-34, it is borne out that on 12.03.1989, the appellant no.3, Ajay Duggal

was invited to attend a lunch at the house of one Rakesh Gera, a person

known to the family of Sushma. As per the testimony of Shamma Chopra,

(PW-21) initially, Sushma had informed her that her husband, Ajay

Duggal would not be attending the lunch however, later on, he came and

while going back, took Sushma along with him to her matrimonial home.

20. It was contended by Mr. Nitin Sehgal, Ld. defence counsel that as

appellant no.2, Ajay had attended the said lunch, it clearly indicated that

the relation between him and Sushma was normal till a day prior to her

death. In our opinion, such an inference cannot be drawn especially in

Crl.A.146/2004 Page 13 of 32
view of the testimonies of the witnesses who in unison deposed that

Sushma was being continuously harassed for not fulfilling the demand of

a sum of Rs.10,000/- and a scooter which had led her to file a complaint

before the CAW Cell on 20.10.1988 and also in view of the conduct of the

appellant no.3, Ajay Duggal and his family members in not attending the

marriage of Minakshi, sister of Sushma on 18.10.1988.

Whether the death of Sushma was a suicide or homicide:

21. It is undisputed fact that Sushma had died an unnatural death on

13.03.1989, in her matrimonial home. PW-3, Krishan Kumar Chopra has

deposed that he received a call from the appellant no.1, Sunil Duggal on

13.03.1989 that Sushma had expired. When he reached the house of the

appellant at about 12:40 p.m., the police had already arrived there. He

noticed injury marks on the neck of the deceased. The presence of ligature

mark on the neck of the deceased was also mentioned by the relatives of

the deceased, namely, PW-3, PW-6, PW-9, PW-20, PW-21 PW-34.

Besides the family members, mark on the neck of the deceased was also

noticed by HC Rekha Rani (PW-17) and HC Hasmat Khan (PW-18).

While PW-17 was not cross-examined at all, no question was put to PW-

18 in this regard during his cross-examination. Rakesh Kapoor (PW-25),

a friend of Sunil Duggal who had attended the marriage of Ajay Duggal

Crl.A.146/2004 Page 14 of 32
and Sushma had deposed about Sushma found lying dead in the courtyard

with some mark on her neck. This witness was also not cross-examined by

the appellants.

22. The appellants had taken shifting stands as to the nature and cause

of Sushma’s death during the trial and while arguing the present appeal.

23. During the trial, while cross-examining the prosecution witnesses

and specifically answering question no.28 in their examination under

Section 313 of Cr.PC, the appellants had maintained that Sushma had died

a natural death. The trial court found this stand to be contrary to the Post

Mortem Report. The post mortem was conducted by Dr. D.N. Sharma

(PW-39). As per the said Post Mortem Report, the cause of death was due

to asphyxia resulting from strangulation. The Post Mortem Report was

also proved by Dr. R.P. Saraswat (PW-31). The said Post Mortem Report

also opined that the light blue coloured chunni, which was seized, might

have been used as the ligature material. Mr. C.K. Jain, Sr. Scientific

Officer, CFSL (PW-45) vide his report (Ex-PY) had also opined that the

chunni was long and strong enough and hence the same could have been

used for strangulation. The Post Mortem Report and the CFSL Report are

reproduced below for ready reference:

Crl.A.146/2004 Page 15 of 32
The following external injuries were observed in the Post Mortem Report

(Ex.PW31/A):-

(i) A ligature mark present around the neck which is passing first on thyroid

area and then passing on right side neck, less horizontally upto middle of

sternomastoid muscle and then going slightly upward and back-ward touching

the hair line at the middle of back and then the ligature mark is continuous on

the left side of the neck in the form of an impression (without abrasion of the

surface skin). Ligature impression on the left side of the neck is passing 2 cms

below the submandibular border and is at a higher level (as compared to its

right side). Colour of ligature mark where it is prominent that is on right side

and front of neck is dark brown in colour and there is no grooving of skin at the

base of ligature.

(ii) Bruise 1 inch x 1/2 inch on the posterior aspect of left elbow on radial

head of the back surface clotted blood present in the soft tissue. There is no other

mark of violence seen on the body.

Injuries are ante-mortem. Injury No.1. is caused by a ligature during process of

strangulation. No.2. injury is caused by blunt impact. Death is due to asphyxia

resulting from strangulation.

Time since death about 24 hours.

Crl.A.146/2004 Page 16 of 32
Chhuni of light blue colour was produced before Dr. D.N. Sharma to seek his

opinion whether ligature mark was possible by the said chhuni. Dr. Sharma

opined that chhuni might have been used as ligature material and opinion is

contained in postmortem report itself.

The CFSL Report (Ex-PY) noted the following:-

“The scientific examination of the chunni marked Ex.1d reveals
that it is long and strong enough. Hence, the same could be used
for strangulation.”

24. In the present appeal, Ld. counsel for the appellants has sought to

change the stand as to the nature and cause of death of Sushma. He has

contended that the strangulation can be explained, as according to him,

Sushma had committed suicide by hanging herself. He placed reliance on

the decision in Mohd. Wakil (supra), in support of the above plea.

25. We are of the view that this argument leads nowhere. Strangulation

and hanging are two completely different causes of death. The Post

Mortem Report has specifically opined that the cause of death of Sushma

was strangulation and not hanging. In ‘MODI A Text Book of Medical

Jurisprudence And Toxicology’, 24th Edition, Chapter 13 Page 456, the

difference between hanging and strangulation has been defined as under:

Hanging Strangulation
Mostly suicidal Mostly homicidal

Crl.A.146/2004 Page 17 of 32
Ligature mark-Oblique, non-continuous Ligature mark-Horizontal or transverse
placed high up in the neck between the continuous, round the neck, low down in

chin and the larynx, the base of the groove the neck below the thyroid, the base of
or furrow being hard, yellow and the groove or furrow being soft and
parchment-like. reddish.

In the instant case, the ligature mark on the neck of the deceased was

opined to be “continuous” in the Post Mortem Report thus leading to an

inference that the death was on account of strangulation.

26. Reliance placed on Mohd. Wakil’s (supra) by the Ld. counsel for

the appellants is also misplaced. In the captioned case, the body of the

deceased was found hanging and was brought down by a witness. The

doctor who had conducted the postmortem, was not aware of this fact and

on the basis of the papers submitted by the police officials which noted it

to be a case of strangulation, he had opined that the death was on account

of strangulation. In the present case, the prosecution has nowhere stated

that Sushma’s death had occurred on account of hanging. A perusal of the

record shows that while forwarding an application requesting for post

mortem (Ex. PW-28/D and 28/D1), the doctor was specifically asked to

opine as to whether the death had occurred on account of strangulation, or

hanging. Thus, in the postmortem report a specific opinion has been given

that the death had occurred due to “asphyxia resulting from strangulation”.

This opinion in the post mortem report was not challenged by the defence

Crl.A.146/2004 Page 18 of 32
and only one general suggestion was given to PW-39 to the effect that his

opinion is not correct, which was denied. If they were so inclined, the

appellants ought to have challenged the cause of death by asking specific

questions to PW-39, who had conducted the postmortem examination,

which they failed to do. On the contrary, throughout the trial, the stand of

the appellants was to the effect that Sushma has died a natural death. It is

noteworthy that in Mohd. Wakil’s case (supra), a co-ordinate Bench of

this court has held that the question whether it is a case of suicide or

homicide, should be left for the expert opinion and the Court should refrain

from taking the task upon itself. Reliance placed by ld. counsel on the

decisions in State vs. Naved UR Rehman (supra); Narender Singh Arora

vs. State (Govt. of NCT of Delhi Ors.) (supra); Dinesh Kumar Ors.

Vs. State NCT of Delhi 2014 SCC Online Del 4129 is also misplaced as

in those cases, the death had occurred on account of hanging and not on

account of strangulation.

27. Faced with this anomaly, ld. counsel for the appellant has sought to

argue that death could have occurred because of self-strangulation. Such a

stand was neither taken before the trial court and not even suggested to the

medical experts, PW-31 and PW-39 who had proved the Post Mortem

Report. Thus, in view of the unchallenged testimony of PW-39 and PW-

Crl.A.146/2004 Page 19 of 32
31, we find that the prosecution has successfully proved that the death of

Sushma has occurred due to “asphyxia resulting from strangulation.”

28. It was next contended that Sushma was alive when Dr J. K. Gupta

(PW-5) had examined her and that the conduct of appellants in calling the

doctor shows their innocence. PW-5 had deposed that on 13.03.1989, the

appellant no. 1, Sunil Duggal came to his clinic and requested the witness

to accompany him to check his Bhabhi. On reaching there, he found

Sushma lying on a “sofa bed” and she had no pulse. Later, in his testimony,

he stated that the pulse was feeble and he was not sure whether Sushma

was alive or dead. He stayed at the spot only for 2-3 minutes and advised

that Sushma be taken to a hospital. In the cross-examination, he stated that

he could not say whether Sushma was alive at that time. From a reading of

the testimony of PW-5 in totality, it cannot be concluded that when PW-5

examined Sushma, she was alive. Public had gathered and relatives of

Sushma had also reached. Simply calling the doctor after the offence does

not lead to any presumption of innocence of the appellants. On the

contrary, the conduct of the appellants towards the deceased is writ large

from the perusal of the testimonies of the witnesses. The deceased barely

survived her marriage for one year.

Crl.A.146/2004 Page 20 of 32

29. Learned counsel for the appellants has next argued that the inquest

proceedings were not properly conducted which has caused prejudice to

the appellants. He contended that the inquest proceedings initially were

conducted by Vipul Mittra, SDM (Punjabi Bagh) (PW-28), who recorded

the statements of family members of the deceased. However, he did not

put his own signatures on the said statements, allegedly in violation of

Sections 176 Cr.PC and the said defect was later cured by H.C. Gaur (PW-

29) who after a period of one year, had recalled the witnesses and recorded

their statements afresh and completed the inquest proceedings. Assailing

the inquest proceedings conducted in such a manner, learned counsel

contended that non-conclusion of the said proceedings on 13.03.1989,

when direction was given by the then SDM (PW-28) and endorsed by the

I.O. for registration of the present case under Section 302 IPC, has caused

serious prejudice to the appellants.

30. The purpose of inquest proceedings is merely to ascertain as to

whether a person has died under unnatural circumstances and what was

the cause of his/her death. The statements recorded by the SDM during the

inquest proceedings is not a substantive piece of evidence but is only in

the nature of a previous statement which can be used during the cross-

examination of the witnesses for the purpose of highlighting

Crl.A.146/2004 Page 21 of 32
contradictions, if any, or discrediting them. As to the object of conducting

the inquest proceedings, reference may be made to the decision of the

Supreme Court in Pedda Narayana vs. State of A.P. (1975) 4 SCC 153

where it was held as follows:-

“11. A perusal of this provision would clearly show that the object
of the proceedings under Section 174 is merely to ascertain whether
a person has died under suspicious circumstances or an unnatural
death and if so what is the apparent cause of the death. The question
regarding the details as to how the deceased was assaulted or who
assaulted him or under what circumstances he was assaulted
appears to us to be foreign to the ambit and scope of the proceedings
under Section 174. In these circumstances, therefore, neither in
practice nor in law was it necessary for the police to have mentioned
these details in the inquest report”.

31. The view in Pedda Narayana (supra) has been approved by a three-

Judge Bench of the Supreme Court in Khujji vs. State of M.P. (1991) 3

SCC 627. Reference in this regard is also made to the decisions of the

Supreme Court in Suresh Rai and Ors vs. State of Bihar (2000) 4 SCC

84; Manoj Kumar Sharma vs. State of Chhatisgarh and Anr. (2016) 9

SCC 1; Yogesh Singh vs. Mahabeer Singh (2017) 11 SCC 195 and

Tehseen Poonawalla vs. Union of India (2018) 6 SCC 72.

32. On a perusal of the Trial Court record, it is evident that PW-28 had

recorded the statements of the relatives of the deceased namely, Krishan

Kumar Chopra (uncle of the deceased), Minakshi (sister of the deceased),

Sushil Kumar (brother-in-law of the deceased), Sunder Das (uncle of the

Crl.A.146/2004 Page 22 of 32
deceased) and Rakesh Kapoor (neighbor). Additionally, PW-28 had

prepared brief facts (Ex.PW-28/B), Form 2535 (Ex.PW-28/C) and the

postmortem application (Ex.PW-28/D). While sending the postmortem

application, the witness had specifically asked the Civil Surgeon to opine

as to whether the death had occurred on account of strangulation or

hanging and also to examine the blue chunni in relation to the cause of the

death. The special note written in this regard was exhibited as Ex.PW-

28/D-1. The witness had clarified in the cross-examination that on the

basis of the statement of Krishan Kumar Chopra and the position of the

dead body, he was of the view that it was a case of murder. He also

clarified that he had made an endorsement, without awaiting an opinion of

the doctor, on the basis of circumstantial evidence available on the record

coupled with the statement of Krishan Kumar Chopra and it was his self-

assessment. We fail to see as to how this assessment of PW-28 has caused

prejudice to the appellants as argued by ld. counsel for the appellants. On

the contrary, the SDM (PW-28) had acted fairly in asking the Civil

Surgeon to clarify as to whether the death had occurred on account of

hanging or strangulation. The assessment made by the witness was even

otherwise found to be correct, as on the very next day, the postmortem

report opined that the death was on account of “Asphyxia resulting from

Crl.A.146/2004 Page 23 of 32
strangulation”. It is no longer res integra that even if the FIR is registered

on the basis of evidence obtained illegally, yet the trial is not vitiated.

33. In terms of the opinion in the postmortem report which has given

the cause of death as strangulation, we are of the opinion that the

prosecution has successfully established the “commission of crime”,

which is the basis for application of Section 106 of the Indian Evidence

Act. The moment prosecution is able to prove that the death of Sushma

was homicide that had occurred in the house of the appellants, the burden

shifts under Section 106 of the Evidence Act on to them to explain the

injuries on the body of Sushma and how she had died. In Trimukh Maroti

Kirkan vs. State of Maharashtra (supra), the Supreme Court held as

under:

“14. If an offence takes place inside the privacy of a house and in
such circumstances where the assailants have all the opportunity to
plan and commit the offence at the time and in circumstances of
their choice, it will be extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if the strict principle
of circumstantial evidence, as noticed above, is insisted upon by the
Courts. A Judge does not preside over a criminal trial merely to see
that no innocent man is punished. A Judge also presides to see that
a guilty man does not escape. Both are public duties.

15. Where an offence like murder is committed in secrecy inside a
house, the initial burden to establish the case would undoubtedly
be upon the prosecution, but the nature and amount of evidence to
be led by it to establish the charge cannot be of the same degree as
is required in other cases of circumstantial evidence. The burden

Crl.A.146/2004 Page 24 of 32
would be of a comparatively lighter character. In view of Section
106 of the Evidence Act there will be a corresponding burden on
the inmates of the house to give a cogent explanation as to how the
crime was committed. The inmates of the house cannot get away by
simply keeping quiet and offering no explanation on the supposed
premise that the burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an accused to offer any
explanation.

xxx

21. In a case based on circumstantial evidence where no eye-
witness account is available, there is another principle of law
which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said
accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional
link in the chain of circumstances to make it complete.

22. Where an accused is alleged to have committed the murder of
his wife and the prosecution succeeds in leading evidence to show
that shortly before the commission of crime they were seen together
or the offence takes place in the dwelling home where the husband
also normally resided, it has been consistently held that if the
accused does not offer any explanation how the wife received
injuries or offers an explanation which is found to be false, it is a
strong circumstance which indicates that he is responsible for
commission of the crime.”

(Emphasis added)

34. Reference is also made to Ganjan Dashrath Kharate vs. State of

Maharashtra (2016) 4 SCC 604 and Chandra Bhawan Singh vs. State of

U.P. (2018) 6 SCC 670. In Chandra Bhawan’s case (supra), it was

observed as under:-

“29. Coming to the involvement of the appellants in commission
of the offence, we find that the High Court relied on the following

Crl.A.146/2004 Page 25 of 32
circumstances appearing against the Appellants for holding them
guilty of commission of the offence of murder of Satyawati. These
circumstances are extracted hereinbelow: (Tribhuwan Singh vs.
State of U.P. (2014) SCC online All 15374)

“28. Here prosecution has discharged its part of the burden by
leading evidence of which it was capable by substantiating the fact

(i) that there has been demand of dowry (ii) deceased has been
taken to her in laws house (iii) at the time of death, deceased has
been staying with her in laws and Appellants are the inmates of
the house (iv) death in question has taken place inside the house

(v) injuries caused clearly reflects that it is case of murder (vi)
story of suicide set up by Appellant No. 3 was not at all supported
by medical evidence (vii) DBBL gun has been used in the
commission of offence and once chain of events are clearly linked
up then in view of Section 106 of Evidence Act, as young bride in
question has been killed inside the house, then there is
corresponding burden on the inmates of the house to give cogent
explanation as to how the crime was committed. The inmates of
the house cannot get away by simply keeping quiet and offering
no explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there is
no duty at all on an Accused to offer any explanation. The
principle is that when an incriminating circumstance is put to the
Accused and the said Accused does not offer any explanation
which on the face of it is found false or untrue, then the same
becomes additional link in the chain of circumstances to make it
complete.

30. In our considered opinion, the aforementioned seven
circumstances set out by the High Court for holding the
Appellants guilty cannot be faulted with. These seven
circumstances do establish the chain of events and being directly
connected with the incident in question, establish the involvement
of the Appellants in commission of the offence beyond reasonable
doubt. In our opinion, the test laid down to prove the guilt by
circumstantial evidence in this case is fully satisfied by the
aforementioned seven circumstances against the Appellants.

Crl.A.146/2004 Page 26 of 32

31. xxxx

32. We also find that both the Accused (Appellants herein) in their
statements recorded Under Section 313 of the Code of Criminal
Procedure, 1973 failed to give any explanation when asked about
the circumstances in which the incident occurred in their house.
When the incident admittedly occurred in their house, the
Appellants were required to explain the circumstances in which
Satyawati died. They, however, failed to give any explanation”.

35. Reliance placed by the learned counsel for the appellants on the

decision in case of Suhaib Ilyasi (supra) is misplaced as it was held in

para 208 (v) of the captioned case that:-

“Without the prosecution proving “commission of crime”, the
question of shifting the burden to the appellant under Section
106 IEA to explain how death had occurred, does not arise.”

36. The appellants herein have miserably failed to discharge the burden

put on them under S.106 Indian Evidence Act. The “commission of crime”

i.e., death by strangulation (homicide) has been successfully proved by the

prosecution. The appellants have not succeeded in discharging the burden

cast on them under Section 106 of the Indian Evidence Act. The ever

changing plea of the appellants as to the cause of death of Shushma, is also

a circumstance which goes against them.

PLEA OF ALIBI

Crl.A.146/2004 Page 27 of 32

37. To urge that the appellants were not present in the house on

13.03.1989 when Sushma had allegedly committed suicide, ld. counsel for

the appellant has placed reliance on the testimony of Ganga Bassi (PW-

40) and Richhapal Singh (PW-41).

38. PW-40, a neighbor of the appellants, had sought to introduce

altogether new facts during his testimony and was declared hostile. He had

sought to introduce a plea of ‘alibi’ for both the appellants by stating that

after bringing the body of Sushma down, he had gone to call the appellants

from their shop. We find that neither such a plea was taken by any of the

two appellants during the investigation, or the trial and nor was such a

suggestion given to any of the material/police witnesses examined till then.

In fact, such a defence was not even suggested by the appellants to the

subsequent witnesses namely, PW-42 PW-43, who were police

witnesses and reached the spot at the first instance and had later

investigated the case. Even during their examination under Section 313

Cr.PC, the plea of alibi was not taken by either of the two appellants.

39. A perusal of the testimony of PW-40 would show that he was a

neighbor of the appellants and was examined on 10.08.2000, i.e. after 11

years of the date of the incident. Thus, he is completely untrustworthy and

unbelievable. There is another reason for reaching the said conclusion.

Crl.A.146/2004 Page 28 of 32
PW-40 had stated that he went to the roof and brought the body of Sushma

down in the courtyard. The witness is discredited by the testimony of PW-

5, Dr. J.K. Gupta who had stated that he had examined Sushma while she

was on a sofa bed. PW-5 further stated that the room was small and the

light was dim. As per PW-40, on being asked by the accused, Asha Rani

Duggal, he had gone to call both the appellants from their shop. Though

in his cross examination by the ld. APP he had denied that he had seen

Sunil Duggal with Dr Gupta but in his cross examination by the ld. defence

counsel, he had admitted that the appellant no.1, Sunil Duggal had gone to

call the Doctor. From above, the sequence of events appears to be that first

PW-40 brought the body of Sushma down from the roof to the courtyard

on the ground floor and then he had gone to call the appellant no.1, Sunil

Duggal who, in turn, had gone to call Dr J K Gupta (PW-5). However, as

per the testimony of PW-5, who reached the appellant’s house, he had

examined Sushma in a room on a sofa-bed and not in the courtyard. To

establish the presence of PW-40 at the spot, the defence counsel had placed

reliance on the testimony of PW-41. PW-41 was also a neighbor who was

examined on 10.08.2000, i.e. after 11 years of the incident. He was also

declared hostile as he had resiled from his previous statement and sought

to introduce new facts.

Crl.A.146/2004 Page 29 of 32

40. On account of the above facts, both PW-40 and PW-41 appear to

have been won over and have stated facts which were not a part of their

earlier statements. The learned defence counsel has sought to argue that

since the trial court has believed the plea of alibi of the co-accused Subhash

Duggal, on parity, their plea of alibi should have been accepted and benefit

extended to them. The said argument is fallacious and deserves outright

rejection. Subhash Duggal had not only consistently suggested his

absence to the prosecution witnesses during their cross examination, but

had also produced two witnesses in his defence to substantiate his plea,

which is not the case with either of the appellants.

41. As noted earlier, the appellants had taken such a plea only during

the arguments for the first time, in the trial. The plea of alibi has to be taken

at the first instance. Reference is made to decision of the Supreme Court

in Sunita Sharma and Ors v. State of Delhi (2016) 15 SCC 551, wherein

it was held as under:

“9. The plea of alibi set up by the accused Sunita Sharma has been
considered by the learned courts below and we have relooked into the
circumstances surrounding the claim. First of all, it was a belated
plea set up at the stage of examination of the accused Sunita Sharma
under Section 313 of the Code of Criminal Procedure, 1973 and that
too about five years after the incident. She had not taken the said
stand at any earlier point of time though she was consistently present
in Court in connection with her trial. That apart, the evidence of DW-
1, DW-2, DW-3 contain self-contradictory statements with regard to
the occasion (marriage) in connection with which she had claimed to

Crl.A.146/2004 Page 30 of 32
have visited Jalandhar. We, therefore, reject the plea of alibi set up
by the accused Sunita Sharma.”

42. In Dhananjay Chatterjee @ Dhana vs. State of West Bengal; 1994

(2) SCC 220, it was held as under:

“10(4)… but it is well settled that a plea of alibi, if raised by an
accused is required to be proved by him by cogent and
satisfactory evidence so as to completely exclude the possibility
of the presence of the accused at the place of occurrence at the
relevant time. The belated and vague plea of alibi of which we
find no whisper during the cross-examination of any of the
prosecution witnesses and which has not been sought to be
established by leading any evidence is only an afterthought and
a plea of despair.”

43. The appellants have taken false pleas in their defence during the trial

as well as in the appeal. The appellants have not only consistently

maintained that the death of Sushma was natural, but also at the fag end of

the trial they had taken the plea that they were not present on the spot on

13.03.1989. Falsity in defence, may in itself not be a ground to convict the

appellants but when seen in totality along with other circumstantial

evidence on record, it can certainly be an additional circumstance that can

be used against them. Reference in this regard is placed on Kuldeep Singh

and Ors v. State of Rajasthan (2000) 5 SCC 7 and Jamnadas v. State of

M.P. (2016) 13 SCC 12.

44. The prosecution has thus successfully proved that the deceased was

harassed by the appellants for non-fulfillment of a demand of cash of Rs.

Crl.A.146/2004 Page 31 of 32
10000/- and a scooter. The prosecution has also successfully proved its

case against the appellant nos. 1 and 3 for causing the death of Sushma by

strangulation in their house.

45. Accordingly, this Court comes to the conclusion that appeal is

devoid of merits and is dismissed. The conviction of appellant nos.1 and 3

under Section 302/34 IPC and under Section 498A/34 IPC as well as the

order on sentence are maintained. The appellants’ bail bonds are cancelled

and they are directed to surrender before the Trial Court within one week.

46. LCR be returned to the Trial Court forthwith alongwith a certified

copy of this judgment.

(MANOJ KUMAR OHRI)
JUDGE

(HIMA KOHLI)
JUDGE
February 25, 2019
‘dc’

Crl.A.146/2004 Page 32 of 32

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