published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40517
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 269 OF 2007
STATE OF HIMACHAL PRADESH … APPELLANT
VERUS
JAI CHAND … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal is preferred by the State of Himachal Pradesh
against the judgment dated 16th November, 2004 in Criminal
Appeal No. 392 of 2002. By the impugned judgment the Division
Bench of the Himachal Pradesh High Court at Shimla, acquitted
the accusedrespondent by allowing the appeal and set aside
the order of conviction under Section 302 IPC and Section 498A
IPC with sentence thereunder, passed by the Sessions Judge,
Hamirpur, HP on 13th June, 2002.
2. The respondent(herein) Jai Chand, along with two others
were tried for offence punishable under Section 302 (r/w
Section 34)IPC and Section 498A IPC. Learned Sessions Judge,
Hamirpur found Jai Chand, accused no. 1 to be guilty under
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Section 302 and 498A IPC.
He was sentenced to undergo
Imprisonment for life and to pay fine of Rs.5000/, in default
of payment of fine, to undergo imprisonment for one year. No
separate sentence under Section 498A IPC was imposed upon the
accused. The two other accused, namely, Prem Chand and Smt.
Nimmo Devi were acquitted.
3. The record reveals that accused no. 1, Jai chand
(respondent herein) and accused no. 2, Prem Chand are real
brothers whereas accused no.3, Nimmo Devi is their sisterin
law (Bhabhi), the wife of their elder brother, Prakash Chand.
4. The prosecution version as unfolded during the trial may
briefly be stated as follows:
Smt. Vidya Devi (since deceased) was wife of Jai Chand,
accused no. 1(respondent herein). She was married to Jai Chand
in the year 1996. On 13th July, 2001, Smt. Vidhya Devi was
brought to District Hospital, Hamirpur in serious condition by
accused no. 1 for medical treatment. The Medical Officer on
duty had informed the police, Police Station at Sadar vide
Rapat No. 3 dated 13th July, 2001(Ex.PW8/A) that one woman was
brought to the hospital for medical treatment under suspicious
circumstances. On the said information, Sansar Chand (PW8),
Inspector/S.H.O. accompanied by other police officials went toPage 3
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the hospital where he found the dead body of Vidya Devi lying
in the Varanda. Roshan Lal, (PW1), father of the deceased was
standing near the dead body. He made statement (Ex.PW1/A)
that his soninlaw, Jai Chand(accused No.1) is a habitual
drunkard and under the influence of liquor, he was in the habit
of beating and treating his daughter with cruelty. Prem Chand
(accused no.2) and Smt. Nimmo Devi (accused no.3) also used to
taunt and abuse the deceased. Two years ago, accused no. 1,
left the deceased at her parents’ house. PW1 pacified his
daughter that all this happens in joint families and sent her
back to matrimonial house. In these circumstances, Vidhya Devi
committed suicide due to maltreatment and torture by all the
accused persons. On 13th July, 2001 at about 8.30A.M. one
Kashmir Singh, resident of his Village Kot, informed PW1
that his daughter Vidhya Devi had been brought to the hospital
at Hamirpur where she expired. PW1 alongwith his son, Ajit
Singh(PW2) went to the hospital and found Vidhya Devi dead.
PW1 had noticed injuries on her person. The statement of PW1
(Ex.PW.1/A) was forwarded by PW8 (vide Ex.PW8/A) to the
Police Station for registration of the case. First Information
Report (Ex.PW6/A) was recorded by PHC Ramesh Chand( PW6) P.S.
Sadar Hamairpur, H.P.. Investigation was conducted initiallyPage 4
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by PW8. He prepared inquest reports (Ex.PW2/A) and Ex.PW
2/B). He wrote an application (Ex.PW8/B) to the Senior
Medical officer, Zonal Hospital, Hamirpur for conducting the
postmortem to the dead body of the deceased. Photographs
(Ex.P9 to Ex.P14) of the dead body were also taken. Jai
Chand (accused no. 1) was present in the hospital and he handed
over ‘dupattas’ (Ex.P2),‘shirt’ (Ex.P3) and ‘Salwar’ (P6) of
the deceased to PW8 which were taken into possession vide
memos; (Ex.PW2/C and PW2/D) respectively. Thereafter, PW8
handed over the file for investigation to Hari Ram (PW9). PW
9 collected the postmortem repot(Ex.PW10/A). On the basis of
the report, the case was converted from Section 306 IPC to
under Section 302 IPC.
5. Jai Chand, accused no. 1 made the alleged disclosure
statement (Ex.PW5/A) under Section 27 of the Evidence Act to
the effect that he alongwith coaccused had hanged the deceased
with ‘Barli’ (a wooden kari placed horizontally on the walls of
the room). To the same effect, disclosure statements
(Ex.PW.5/B and Ex.PW5/D) were made by accused no. 3. Jai
Chand, accused no. 1 also got recovered one iron bucket (Ex.P
7) which was taken into possession vide disclosure memo(PW
5/C). PW9 prepared the site map(Ex. PW9/A) depicting thePage 5
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place where the accused person had put the face of the deceased
in the bucket filled with water and pointed the place where
her body was tied with ‘barli’ by accused persons.
6. As per, the disclosure statement of Jai Chand, (accused no.
1) and Nimmo Devi (accused no. 3), on the intervening night
of 12th/13th July, 2001, Vidhya Devi came out of the room and
went to a place where the cattle were used to be kept. Her
husband, Jai Chand, accused no. 1 also followed her and asked
his wife to go to bed but she did not respond thereto. Both
of them entered into verbal fight. Accused no. 1 at that time
dipped the head of the deceased in the bucket full of water
lying there. As a result thereof, she felt suffocated and the
water entered into her mouth as well as in stomach. Accused
no. 1 then lifted her from that place and laid her on the cot.
Accused no. 1 called accused nos. 2 and 3. Accused no. 3
caught hold of arms of the deceased whereas accused no. 2
caught hold of her legs. Accused no. 1 throttled the deceased
with hands and caused her death. On finding no movement in
her body, all the accused hanged the deceased with dupattas
and thereafter laid the dead body of the deceased Vidhya Devi
on a cot. On the following morning, Jai Chand, accused no. 1
told his mother that his wife had become unconscious duringPage 6
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the night and now she is not speaking anything. Jai Chand,
accused no. 1 then took her wife to the courtyard and laid her
body on a cot lying there. The residents of the village were
informed about the death of Vidhya Devi. One Smt. Damodri Devi
brought some milk from her house but the deceased could not
inhale the same. Thereafter, accused no. 1 accompanied by
Kartar Singh and Deepak Kumar brought the deceased on the cot
to the road side. Prakash Chand, brother of accused no.1 who
had gone to call the doctor, had brought the taxi and the
deceased was thus taken to the Zonal Hospital, Hamirpur where
she was declared dead. The body of the deceased was sent for
post mortem. PW10, Dr. K. C. Chopra submitted post mortem
report (Ex.PW10/A). The stomach contents including viscera
etc. preserved by the team of doctors has been got analysed and
as per report Ext. PW8/B, neither the contents of any poison
nor intoxicant could be detected on analysis thereof. Thus, no
case of poisoning was found.
7. On receipt of post mortem report (Ex.PW10/A) and report
of the Chemical Examiner(Ex.PW8/D), it was found that the
deceased had not committed suicide but she was killed by the
accused no. 1 by dipping her face into a bucket of water and
strangulating her.
All the three accused were sent for trialPage 7
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for the office under Section 302 read with Section 34 IPC and
498A IPC.
8. PW10, Dr. K. C. Chopra, Medical officer, Zonal Hospital,
Hamirpur, H.P., in his statement stated that he alongwith Dr.
K.S. Dogra conducted post mortem of the dead body of Smt.
Vidhya Devi, wife of Jai Chand and observed as follows:
“EXTERNAL APPEARANCE:
Dead body was lying in supine with face in the
centre (there was no turning of face to either side).
White leathorty foam seen at both nostrils which was
more on pressing the epigastriun. No sticky saliva
was present on the angle of the mouth. No postmortem
staining was present over the back and legs. No
petechcial haemorrages seen over the chest or legs.
Two contusions 3x2 cm present on the left upper arm,
reddish blue in colour. No stretching and elongation
of neck, head inclined to neither side.
LIGATURE MARK
There was 10 cm long ligature mark of dark brown
colour extending from left sternocleide mastoid to
the right sternocleide mastoid below cricoids
cartilage, reddish brown in colour, abrasion to be on
the right side. Ligature mark encircles the neck
only on front side. No encircling of the neck on the
back and away from sternecleid mastoid. There was
ligature of 1.5 cm wide or less than it at places
(ligature used was not presented by the police at the
time of postmortem examination). It was not with the
body either. No abrasion/brusises on the mouth,
nose, cheeks, forehead. Lips were blue. Tongue was
in drawn, plinching of teeth, on opening base of
tongue swollen. No injury to tough, clinching of
hands present.
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DISSECTION OF NECK
On dissection, there was extra vasation of blood
into subsubcutanous tissue under ligature mark on
right side present. Platysma and right sternocloide
mastoid muscle lacerated. No laceration of sheath of
carotid artries. No fracture of hyoid bone or
thyroid cartilage. Epiglottis not cyanosed Trachea
and larynx were congested and have forthy mucous.
First 23 rings of trachea fractured.
ABDOMEN:
Walls and peritoneum were normal. Mouth Pharynx
and oasophagus had whitish fluid. Stomach was
containing 500 cc of fluid mixed with mucous and
small sticky material. Small Intestine was
containing semidigested food but no fluid are
present. Faecal matters were present in large
intestine. Liver was normal, it was dark in colour,
on cutting dark fluid came out. The spleen was dark
in colour and was congested. Kidney was normal in
size and was congested. The bladder was empty.
Organ of generation was normal. There was no
evidence of rape or any injury.
CRANIUM SPINAL CORD
There was no fracture of skullbone. Brain was
congested and also the membrane.
THORAX:
Walls, ribs, cartilages and pleurae were normal.
Larynx and trachea was congested and contained white
fluid, no sand or mud seen, no food particles
present. Right and left lung were distended, pale
grey, indented by the ribs, heavy cedemataous,
spongy, pite on pressure. On pressing, frothy
whitish fluids came through bronchials. Heart was
normal, left side was empty and the right was full.
No fracture/dislocation of bones were found.
9. Dr. K.C. Chopra (PW10) also stated their opinion as to
cause of death of the deceased. The same is quoted hereunder:Page 9
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“In our opinion deceased died due to asphyxia
caused by drowning and strangulation. The probable
time between injury and death was immediate and
between death and postmortem within 24 hours.
x x x x x x x x x
In our opinion as mentioned in Ex.PW10/A
strangulation in this case was not caused by
suspending the body. The chances of dupatta as
ligature mark in the case were minimum, i.e. dupatta
like Ex P2 and P3. Drowning and strangulation are
possible in this case while putting the face/mouth of
deceased in bucket ExP8 filled with water and with
pressure being applied.”
10. Dr. K.C. Chopra (PW10) further stated that the post
mortem report was written by Dr. K.S. Dogra (PW8) and was
signed by both of them.
11. The accused no. 1 (respondent herein) made a plain denial
of the prosecution case. In statement under Section 313
Cr.P.C., accused no. 1(respondent herein) alleged that
witnesses have falsely deposed against him being relative of
the deceased and due to enmity with him. In reply to question
no. 26, the accused no. 1 stated as follows:
“Q.26 Anything else you want to say?
Ans. The deceased had illicit relations with my
nephew Banku Ram, S/o Shri Rohli Ram. On one
occasion when I came on leave to the house, came
across few love letters written by said Banku Ram to
the deceased; on this I inquired from her about such
relations and asked her to discontinue such
relations. On this she went to the house of her
parents and stayed there for about 3 months and when
brought to my house by her parents, she used toPage 10
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remain depressed. She has, thus committed suicide
due to her own problems and not on account of the
alleged torturing attributed to him. I am thus
innocent and implicated falsely in this case. It
is, however, submitted that those letters were burnt
by me with the idea to maintain cordial relations
with the deceased and also to forget whatever as
happed in the past.”
12. The Trial Court considered the version of Kartar Chand (PW
3) posted as Primary Education Teacher in Government High
School, Barhi, an independent witness, Post Mortem Report (PW
10/A), statement of Dr. K.C. Chopra (PW10), report and the
testimony of PW1 and PW2 and held that “the circumstances
reveal that the deceased has been done away to death by the
said accused and none else”....”The circumstances appearing in
the prosecution evidence are conclusive in nature and leads to
the only conclusion that it is accused no.1 who has caused the
death to the deceased.”
13. The Division Bench of the High Court rejected the evidence
of the prosecution witnesses for the reasons which may be
summed up as below:
(1) Dr. K.C. Chopra (PW10) had no experience as a
forensic expert, therefore, his evidence cannot be
read under Section 45 of the Evidence Act.
(2) The Division Bench appreciated the medical
evidence itself and held that there was no sign of
injuries suggestive of resistance on the part ofPage 11
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the deceased to establish that the face of the
deceased was forcibly thrust into iron bucket
filled in with water. Only 500cc of fluid mixed
with mucous and small sticky material was found in
the stomach. The hairs of the deceased was not
found wet. Dr. K.C. Chopra (PW10) found marks of
injuries on the neck of the deceased but in his
cross examination he stated that if the force was
applied, in that event, the bucket which was used
as ligature could touch both the ears. But no
injuries were found on the ears of the deceased or
on any part of her mouth or head.
(3) The conduct of Jai Chand, accused no.1 would
go to show that he tried very hard to save the life
of his wife by taking her to the Zonal Hospital,
Hamirpur for medical treatment. Had Smt. Vidhya
Devi been killed by her husband, he would not
have dare to take the dead body of the deceased to
the hospital to get the medical opinion against
himself.
14. Learned Counsel on behalf of the appellantState submitted
that the High Court was wrong in ignoring the medical evidence
which clearly established that it was not a case of suicide but
a case of homicide which ultimately has been caused by the
husband of the deceased. The High Court also failed to notice
the statement of Jai Chand, accused no. 1 (respondent herein),
husband of the deceased under Section 313 which is self
explanatory that he had been keeping a hatred attitude towardsPage 12
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his wife due to her illicit relation with his nephew and which
resulted in motive and intention to kill her during night.
This statement coupled with other circumstantial evidence leave
no doubt that the accused no.1 cannot escape himself from the
commission of offence. Further according to the appellant as
deceased Vidhya Devi was staying with the respondent and died
unnatural death, it was for Jai Chand (respondent) being
husband to explain the circumstances under which she died.
Learned counsel also contended that the High Court failed to
appreciate that although there is no direct evidence, chain of
circumstances appeared on record is so complete to fetch
conviction to the husband of the deceased if not to all the
accused. It is on the basis of disclosure statement of
accused no.1 a bucket which is most relevant evidence relating
to the medical evidence is recovered, which is sufficient to
convict the respondent.
15. Learned counsel appearing on behalf of the respondent
referred to the findings of the Division Bench of the High
Court in support of the respondent.
16. The principal contention raised in support of the appeal
filed on behalf of the State is that the medical evidence
available on record completely supports the prosecution case.Page 13
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Let us, therefore, have a look at medical evidence available on
record. PostMortem Report(PW10/A) has already been noticed
above. The plea raised by accused no. 1(respondent herein) was
that the deceased died due to suicidal hanging cannot be
accepted for the reason that her body was not found stretched.
If she had strangulated herself, her body should have been
stretched and the fracture of hyoid bones and thyroid
cartilages should have been there. Post mortem Report clearly
shows that there is no such fracture and the testimony of Dr.
K.C. Chopra( PW10) supports the same. In a death case, by way
of hanging, the tongue of the deceased should not have been
indrawn as has been noticed in the post mortem report(Ex.PW
10/A), but the same should have been out of the mouth. There
being the evidence of 23 rings of trachea fractured, trachea,
larynx, spleen and kidney being congested is also suggestive of
the fact that it was not a suicidal death, but a homicidal one.
The team of doctors after observing so, during the examination,
have come to the conclusion that the cause of death was
Asphyxia caused by drowning and strangulation. The probable
time between injury and death had been recorded minimum. The
death by way of drowning and strangulation can be caused
instantaneously. Admittedly, it is not the case of either ofPage 14
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the parties that the death is caused by way of poisoning,
however, in order to rule out the possibility in this behalf
also, the stomach contents including viscera etc. preserved
by the team of doctors got analysed and as per report (Ex.PW
8/D), neither the contents of any poison nor any intoxicant
could be detected on analysis thereof.
17. Dr. K.C. Chopra (PW10) is specific while deposing in his
examinationinchief that strangulation in this case has not
been found to be caused by suspending the body. He also ruled
out the chances of dupattas (Ex.P2 and P3) being the ligature
used for strangulation by the deceased and to the contrary, he
specifically stated that drowning and strangulation are
possible in this case by dipping the face/mouth of the deceased
into the bucket (Ex.P8) filled with water and by applying
force in pressing her mouth therein.
18. Much stress was made by learned counsel appearing on
behalf of the respondent that there is no possibility of the
ears touching the top of bucket, even if mouth of anyone is
dipped therein and pressed with force. An effort was thus been
made to discard the testimony of PW10. However, in our view,
it is not so relevant as to whether the bucket used as a
ligature was touching the ears or not. Page 15
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19. It is true that postmortem report(PW10/A) is not a
substantive piece of evidence. But the evidence of such doctor
cannot be insignificant. This Court in State of Haryana v. Ram
Singh, (2002)2 SCC 426 held as under:
“1. While it is true that the postmortem report by
itself is not a substantive piece of evidence, but
the evidence of the doctor conducting the postmortem
can by no means be ascribed to be insignificant. The
significance of the evidence of the doctor lies vis
àvis the injuries appearing on the body of the
deceased person and likely use of the weapon therefor
and it would then be the prosecutor’s duty and
obligation to have the corroborative evidence
available on record from the other prosecution
witnesses.”
20.In the present case, the postmortem was conducted by a
team of doctors, namely, Dr. K.C. Chopra and K.S. Dogra. In
crossexamination, no suggestion was made on behalf of the
defence that they were not competent or that Dr. K.C. Chopra
and Dr. K.S. Dogra have not expertised to perform post mortem
of a body. The viscera test was done by forensic expert (PW8),
who submitted the report.
21. From the aforesaid evidence, it is clear that Dr. K.C.
Chopra (PW10) conducted the post mortem and the forensic
expert (PW8) conducted the viscera test. The High Court
proceeded on erroneous premise to hold that “Dr. K.C. Choopra
might have acquired some experience as Medical Officer but hePage 16
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is not a forensic expert to give the level of an expert witness
examined in the Court.”
22. The High Court was thus, clearly in error, in formulating
its own opinion based on conjectural premises and deciding the
case on the basis of that, discarding the opinion of the
medical experts regarding the nature of the injury and cause of
death. The conclusions are not sustainable otherwise also .
23. It is true that PW1, father of the deceased, PW2, brother
of the deceased and PW5 Prem Chand belong to the same
village. However they being related to each other and being
residents of the same place is not fatal to the prosecution
case, because they have deposed about the facts which are not
in controversy save and except that the deceased was being
tortured by the accused persons. However, the present case is
not a case of suicidal death of the deceased on being fedup
with the torture of the accused persons, but a case of
homicidal death and as such, the version of PWs. 1 and 2 in
this behalf is not so material.
24. The recovery of bucket(Ex.P8) has been proved as the same
has been produced by accused no. 1(respondent herein) himself
before the police as recorded in memo (Ex.PW5/C) recorded at
his instance in the presence of Prem Chand (PW5) and PyarePage 17
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Lal. As a matter of fact, the bucket was lying in the courtyard
where it is identified by accused no. 1(respondent herein) and
thereafter, was taken into possession by the police. The
reference in this behalf can be made to the statement of Prem
Chand(PW5) who stated that accused no. 1 had shown the bucket
to the police which was sealed in a parcel and thereafter
taken into possession vide recovery memo ((Ex.PW5/C). Not
only this, he even identified the bucket(Ex.P8) to be the
same. The recovery of an incriminating article from a place
which is open and accessible to others, alone cannot vitiate
such recovery under Section 27 of the Indian Evidence Act.
Thus, the present is the case where there is no difficulty in
holding that the bucket(Ex.P8) is the same which was used by
the respondent(herein) for drowning and strangulating his wife,
Vidhya Devi.
25. Kartar Chand(PW3) is an independent witness. In his
testimony, he deposed that on his way to school on 13th July,
2001 from his village, when he reached Village Ulehra, (native
place of the accused) around 7.15 A.M., he met accused no.
1(respondent) and Deepak carrying the deceased on the cot to
the road side for carrying her to the hospital and it was the
accused no. 1(respondent herein) who told Kartar Chand(PW3)Page 18
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that as she was ill, hence being taken to the hospital. The
accused no. 1 has thus, misrepresented the factual position to
PW3 which shows guilty intention on his part. No doubt, in
reply to question no. 11, he denied having represented so to
Kartar Chand(PW3) and as per his version, the said witness
was told that deceased had strangulated herself, but there is
no reason to disbelieve the testimony of PW3, as a matter of
fact, PW3 is an independent witness. Reply to question no.
11 shows that accused no. 1 also accepted that PW3 met him on
the spot in the early morning. Therefore, it cannot be said
that the PW3 was interested in the case of either of the
parties. Not only this, as per version of PW3, the deceased
at that time was silent and there was no movement in her body,
meaning thereby that she was already dead in the house itself
and in order to mislead the village folks and to create
evidence that he made efforts to save his wife’s life he took
her dead body to the hospital. Such conduct on his part amply
demonstrates that it is the accused no. 1 (respondent herein)
alone who caused the death of his wife, Vidhya Devi.
26. Post mortem report(PW10/A) prepared by Dr. K.C.
Chopra(PW10) shows that there was ligature mark on the neck of
the deceased. The opinion of the doctor is clear and definite
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that the ligature mark of 10cm long and 1.5 cm. wide in horizontal position cannot be caused by hanging but could have been caused by strangulation.
Medical evidence, therefore, completely falsify the case of accused no. 1(respondent herein).
The conduct of the accused no. 1 was also not natural.
When he found his wife hanging, he neither made hue and cry nor called the villagers nearby.
He along with others brought down the body of the deceased. He, even thereafter,
did not report the matter immediately on his own to police.
27. The act of bringing his wife, Vidhya Devi to the hospital
cannot absolve the guilt of accused no. 1(respondent herein) of
an offence committed by him. He was the best person who could
have explained the reasons for the horizontal ligature mark of
10 cm. x 1.5cm. on the neck of the deceased and as to why he
did not inform the matter to the villagers before bringing down
the body of the deceased.
28. Therefore, we find that all the findings by the Division
Bench of the High Court, rejecting the evidence of Dr. K.C.
Chopra (PW10) and other material witnesses including Kartar
Chand (PW3) and Prem Chand (PW5) are clearly unsustainable,
whereas those given by the Trial Court accepting the evidence
of these witnesses were weighty and sound. Page 20
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29. Hence, we allow the appeal and set aside the impugned order
of acquittal passed by the Division Bench of the High Court of
Himachal Pradesh on 16th November, 2004 and convict the
accusedrespondent under Section 302 IPC for the murder of his
wife, Vidhya Devi and sentence him to imprisonment for life.
We, thereby restore the order of conviction passed against the
accusedrespondent by the Trial Court. The accusedrespondent
shall surrender immediately to serve out the remainder of the
sentence.
…………………………………………………………………………J.
(A.K. PATNAIK)
…………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 3,2013
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 269 OF 2007
STATE OF HIMACHAL PRADESH … APPELLANT
VERUS
JAI CHAND … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal is preferred by the State of Himachal Pradesh
against the judgment dated 16th November, 2004 in Criminal
Appeal No. 392 of 2002. By the impugned judgment the Division
Bench of the Himachal Pradesh High Court at Shimla, acquitted
the accusedrespondent by allowing the appeal and set aside
the order of conviction under Section 302 IPC and Section 498A
IPC with sentence thereunder, passed by the Sessions Judge,
Hamirpur, HP on 13th June, 2002.
2. The respondent(herein) Jai Chand, along with two others
were tried for offence punishable under Section 302 (r/w
Section 34)IPC and Section 498A IPC. Learned Sessions Judge,
Hamirpur found Jai Chand, accused no. 1 to be guilty under
Page 2
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Section 302 and 498A IPC.
He was sentenced to undergo
Imprisonment for life and to pay fine of Rs.5000/, in default
of payment of fine, to undergo imprisonment for one year. No
separate sentence under Section 498A IPC was imposed upon the
accused. The two other accused, namely, Prem Chand and Smt.
Nimmo Devi were acquitted.
3. The record reveals that accused no. 1, Jai chand
(respondent herein) and accused no. 2, Prem Chand are real
brothers whereas accused no.3, Nimmo Devi is their sisterin
law (Bhabhi), the wife of their elder brother, Prakash Chand.
4. The prosecution version as unfolded during the trial may
briefly be stated as follows:
Smt. Vidya Devi (since deceased) was wife of Jai Chand,
accused no. 1(respondent herein). She was married to Jai Chand
in the year 1996. On 13th July, 2001, Smt. Vidhya Devi was
brought to District Hospital, Hamirpur in serious condition by
accused no. 1 for medical treatment. The Medical Officer on
duty had informed the police, Police Station at Sadar vide
Rapat No. 3 dated 13th July, 2001(Ex.PW8/A) that one woman was
brought to the hospital for medical treatment under suspicious
circumstances. On the said information, Sansar Chand (PW8),
Inspector/S.H.O. accompanied by other police officials went toPage 3
3
the hospital where he found the dead body of Vidya Devi lying
in the Varanda. Roshan Lal, (PW1), father of the deceased was
standing near the dead body. He made statement (Ex.PW1/A)
that his soninlaw, Jai Chand(accused No.1) is a habitual
drunkard and under the influence of liquor, he was in the habit
of beating and treating his daughter with cruelty. Prem Chand
(accused no.2) and Smt. Nimmo Devi (accused no.3) also used to
taunt and abuse the deceased. Two years ago, accused no. 1,
left the deceased at her parents’ house. PW1 pacified his
daughter that all this happens in joint families and sent her
back to matrimonial house. In these circumstances, Vidhya Devi
committed suicide due to maltreatment and torture by all the
accused persons. On 13th July, 2001 at about 8.30A.M. one
Kashmir Singh, resident of his Village Kot, informed PW1
that his daughter Vidhya Devi had been brought to the hospital
at Hamirpur where she expired. PW1 alongwith his son, Ajit
Singh(PW2) went to the hospital and found Vidhya Devi dead.
PW1 had noticed injuries on her person. The statement of PW1
(Ex.PW.1/A) was forwarded by PW8 (vide Ex.PW8/A) to the
Police Station for registration of the case. First Information
Report (Ex.PW6/A) was recorded by PHC Ramesh Chand( PW6) P.S.
Sadar Hamairpur, H.P.. Investigation was conducted initiallyPage 4
4
by PW8. He prepared inquest reports (Ex.PW2/A) and Ex.PW
2/B). He wrote an application (Ex.PW8/B) to the Senior
Medical officer, Zonal Hospital, Hamirpur for conducting the
postmortem to the dead body of the deceased. Photographs
(Ex.P9 to Ex.P14) of the dead body were also taken. Jai
Chand (accused no. 1) was present in the hospital and he handed
over ‘dupattas’ (Ex.P2),‘shirt’ (Ex.P3) and ‘Salwar’ (P6) of
the deceased to PW8 which were taken into possession vide
memos; (Ex.PW2/C and PW2/D) respectively. Thereafter, PW8
handed over the file for investigation to Hari Ram (PW9). PW
9 collected the postmortem repot(Ex.PW10/A). On the basis of
the report, the case was converted from Section 306 IPC to
under Section 302 IPC.
5. Jai Chand, accused no. 1 made the alleged disclosure
statement (Ex.PW5/A) under Section 27 of the Evidence Act to
the effect that he alongwith coaccused had hanged the deceased
with ‘Barli’ (a wooden kari placed horizontally on the walls of
the room). To the same effect, disclosure statements
(Ex.PW.5/B and Ex.PW5/D) were made by accused no. 3. Jai
Chand, accused no. 1 also got recovered one iron bucket (Ex.P
7) which was taken into possession vide disclosure memo(PW
5/C). PW9 prepared the site map(Ex. PW9/A) depicting thePage 5
5
place where the accused person had put the face of the deceased
in the bucket filled with water and pointed the place where
her body was tied with ‘barli’ by accused persons.
6. As per, the disclosure statement of Jai Chand, (accused no.
1) and Nimmo Devi (accused no. 3), on the intervening night
of 12th/13th July, 2001, Vidhya Devi came out of the room and
went to a place where the cattle were used to be kept. Her
husband, Jai Chand, accused no. 1 also followed her and asked
his wife to go to bed but she did not respond thereto. Both
of them entered into verbal fight. Accused no. 1 at that time
dipped the head of the deceased in the bucket full of water
lying there. As a result thereof, she felt suffocated and the
water entered into her mouth as well as in stomach. Accused
no. 1 then lifted her from that place and laid her on the cot.
Accused no. 1 called accused nos. 2 and 3. Accused no. 3
caught hold of arms of the deceased whereas accused no. 2
caught hold of her legs. Accused no. 1 throttled the deceased
with hands and caused her death. On finding no movement in
her body, all the accused hanged the deceased with dupattas
and thereafter laid the dead body of the deceased Vidhya Devi
on a cot. On the following morning, Jai Chand, accused no. 1
told his mother that his wife had become unconscious duringPage 6
6
the night and now she is not speaking anything. Jai Chand,
accused no. 1 then took her wife to the courtyard and laid her
body on a cot lying there. The residents of the village were
informed about the death of Vidhya Devi. One Smt. Damodri Devi
brought some milk from her house but the deceased could not
inhale the same. Thereafter, accused no. 1 accompanied by
Kartar Singh and Deepak Kumar brought the deceased on the cot
to the road side. Prakash Chand, brother of accused no.1 who
had gone to call the doctor, had brought the taxi and the
deceased was thus taken to the Zonal Hospital, Hamirpur where
she was declared dead. The body of the deceased was sent for
post mortem. PW10, Dr. K. C. Chopra submitted post mortem
report (Ex.PW10/A). The stomach contents including viscera
etc. preserved by the team of doctors has been got analysed and
as per report Ext. PW8/B, neither the contents of any poison
nor intoxicant could be detected on analysis thereof. Thus, no
case of poisoning was found.
7. On receipt of post mortem report (Ex.PW10/A) and report
of the Chemical Examiner(Ex.PW8/D), it was found that the
deceased had not committed suicide but she was killed by the
accused no. 1 by dipping her face into a bucket of water and
strangulating her.
All the three accused were sent for trialPage 7
7
for the office under Section 302 read with Section 34 IPC and
498A IPC.
8. PW10, Dr. K. C. Chopra, Medical officer, Zonal Hospital,
Hamirpur, H.P., in his statement stated that he alongwith Dr.
K.S. Dogra conducted post mortem of the dead body of Smt.
Vidhya Devi, wife of Jai Chand and observed as follows:
“EXTERNAL APPEARANCE:
Dead body was lying in supine with face in the
centre (there was no turning of face to either side).
White leathorty foam seen at both nostrils which was
more on pressing the epigastriun. No sticky saliva
was present on the angle of the mouth. No postmortem
staining was present over the back and legs. No
petechcial haemorrages seen over the chest or legs.
Two contusions 3x2 cm present on the left upper arm,
reddish blue in colour. No stretching and elongation
of neck, head inclined to neither side.
LIGATURE MARK
There was 10 cm long ligature mark of dark brown
colour extending from left sternocleide mastoid to
the right sternocleide mastoid below cricoids
cartilage, reddish brown in colour, abrasion to be on
the right side. Ligature mark encircles the neck
only on front side. No encircling of the neck on the
back and away from sternecleid mastoid. There was
ligature of 1.5 cm wide or less than it at places
(ligature used was not presented by the police at the
time of postmortem examination). It was not with the
body either. No abrasion/brusises on the mouth,
nose, cheeks, forehead. Lips were blue. Tongue was
in drawn, plinching of teeth, on opening base of
tongue swollen. No injury to tough, clinching of
hands present.
Page 8
8
DISSECTION OF NECK
On dissection, there was extra vasation of blood
into subsubcutanous tissue under ligature mark on
right side present. Platysma and right sternocloide
mastoid muscle lacerated. No laceration of sheath of
carotid artries. No fracture of hyoid bone or
thyroid cartilage. Epiglottis not cyanosed Trachea
and larynx were congested and have forthy mucous.
First 23 rings of trachea fractured.
ABDOMEN:
Walls and peritoneum were normal. Mouth Pharynx
and oasophagus had whitish fluid. Stomach was
containing 500 cc of fluid mixed with mucous and
small sticky material. Small Intestine was
containing semidigested food but no fluid are
present. Faecal matters were present in large
intestine. Liver was normal, it was dark in colour,
on cutting dark fluid came out. The spleen was dark
in colour and was congested. Kidney was normal in
size and was congested. The bladder was empty.
Organ of generation was normal. There was no
evidence of rape or any injury.
CRANIUM SPINAL CORD
There was no fracture of skullbone. Brain was
congested and also the membrane.
THORAX:
Walls, ribs, cartilages and pleurae were normal.
Larynx and trachea was congested and contained white
fluid, no sand or mud seen, no food particles
present. Right and left lung were distended, pale
grey, indented by the ribs, heavy cedemataous,
spongy, pite on pressure. On pressing, frothy
whitish fluids came through bronchials. Heart was
normal, left side was empty and the right was full.
No fracture/dislocation of bones were found.
9. Dr. K.C. Chopra (PW10) also stated their opinion as to
cause of death of the deceased. The same is quoted hereunder:Page 9
9
“In our opinion deceased died due to asphyxia
caused by drowning and strangulation. The probable
time between injury and death was immediate and
between death and postmortem within 24 hours.
x x x x x x x x x
In our opinion as mentioned in Ex.PW10/A
strangulation in this case was not caused by
suspending the body. The chances of dupatta as
ligature mark in the case were minimum, i.e. dupatta
like Ex P2 and P3. Drowning and strangulation are
possible in this case while putting the face/mouth of
deceased in bucket ExP8 filled with water and with
pressure being applied.”
10. Dr. K.C. Chopra (PW10) further stated that the post
mortem report was written by Dr. K.S. Dogra (PW8) and was
signed by both of them.
11. The accused no. 1 (respondent herein) made a plain denial
of the prosecution case. In statement under Section 313
Cr.P.C., accused no. 1(respondent herein) alleged that
witnesses have falsely deposed against him being relative of
the deceased and due to enmity with him. In reply to question
no. 26, the accused no. 1 stated as follows:
“Q.26 Anything else you want to say?
Ans. The deceased had illicit relations with my
nephew Banku Ram, S/o Shri Rohli Ram. On one
occasion when I came on leave to the house, came
across few love letters written by said Banku Ram to
the deceased; on this I inquired from her about such
relations and asked her to discontinue such
relations. On this she went to the house of her
parents and stayed there for about 3 months and when
brought to my house by her parents, she used toPage 10
10
remain depressed. She has, thus committed suicide
due to her own problems and not on account of the
alleged torturing attributed to him. I am thus
innocent and implicated falsely in this case. It
is, however, submitted that those letters were burnt
by me with the idea to maintain cordial relations
with the deceased and also to forget whatever as
happed in the past.”
12. The Trial Court considered the version of Kartar Chand (PW
3) posted as Primary Education Teacher in Government High
School, Barhi, an independent witness, Post Mortem Report (PW
10/A), statement of Dr. K.C. Chopra (PW10), report and the
testimony of PW1 and PW2 and held that “the circumstances
reveal that the deceased has been done away to death by the
said accused and none else”....”The circumstances appearing in
the prosecution evidence are conclusive in nature and leads to
the only conclusion that it is accused no.1 who has caused the
death to the deceased.”
13. The Division Bench of the High Court rejected the evidence
of the prosecution witnesses for the reasons which may be
summed up as below:
(1) Dr. K.C. Chopra (PW10) had no experience as a
forensic expert, therefore, his evidence cannot be
read under Section 45 of the Evidence Act.
(2) The Division Bench appreciated the medical
evidence itself and held that there was no sign of
injuries suggestive of resistance on the part ofPage 11
11
the deceased to establish that the face of the
deceased was forcibly thrust into iron bucket
filled in with water. Only 500cc of fluid mixed
with mucous and small sticky material was found in
the stomach. The hairs of the deceased was not
found wet. Dr. K.C. Chopra (PW10) found marks of
injuries on the neck of the deceased but in his
cross examination he stated that if the force was
applied, in that event, the bucket which was used
as ligature could touch both the ears. But no
injuries were found on the ears of the deceased or
on any part of her mouth or head.
(3) The conduct of Jai Chand, accused no.1 would
go to show that he tried very hard to save the life
of his wife by taking her to the Zonal Hospital,
Hamirpur for medical treatment. Had Smt. Vidhya
Devi been killed by her husband, he would not
have dare to take the dead body of the deceased to
the hospital to get the medical opinion against
himself.
14. Learned Counsel on behalf of the appellantState submitted
that the High Court was wrong in ignoring the medical evidence
which clearly established that it was not a case of suicide but
a case of homicide which ultimately has been caused by the
husband of the deceased. The High Court also failed to notice
the statement of Jai Chand, accused no. 1 (respondent herein),
husband of the deceased under Section 313 which is self
explanatory that he had been keeping a hatred attitude towardsPage 12
12
his wife due to her illicit relation with his nephew and which
resulted in motive and intention to kill her during night.
This statement coupled with other circumstantial evidence leave
no doubt that the accused no.1 cannot escape himself from the
commission of offence. Further according to the appellant as
deceased Vidhya Devi was staying with the respondent and died
unnatural death, it was for Jai Chand (respondent) being
husband to explain the circumstances under which she died.
Learned counsel also contended that the High Court failed to
appreciate that although there is no direct evidence, chain of
circumstances appeared on record is so complete to fetch
conviction to the husband of the deceased if not to all the
accused. It is on the basis of disclosure statement of
accused no.1 a bucket which is most relevant evidence relating
to the medical evidence is recovered, which is sufficient to
convict the respondent.
15. Learned counsel appearing on behalf of the respondent
referred to the findings of the Division Bench of the High
Court in support of the respondent.
16. The principal contention raised in support of the appeal
filed on behalf of the State is that the medical evidence
available on record completely supports the prosecution case.Page 13
13
Let us, therefore, have a look at medical evidence available on
record. PostMortem Report(PW10/A) has already been noticed
above. The plea raised by accused no. 1(respondent herein) was
that the deceased died due to suicidal hanging cannot be
accepted for the reason that her body was not found stretched.
If she had strangulated herself, her body should have been
stretched and the fracture of hyoid bones and thyroid
cartilages should have been there. Post mortem Report clearly
shows that there is no such fracture and the testimony of Dr.
K.C. Chopra( PW10) supports the same. In a death case, by way
of hanging, the tongue of the deceased should not have been
indrawn as has been noticed in the post mortem report(Ex.PW
10/A), but the same should have been out of the mouth. There
being the evidence of 23 rings of trachea fractured, trachea,
larynx, spleen and kidney being congested is also suggestive of
the fact that it was not a suicidal death, but a homicidal one.
The team of doctors after observing so, during the examination,
have come to the conclusion that the cause of death was
Asphyxia caused by drowning and strangulation. The probable
time between injury and death had been recorded minimum. The
death by way of drowning and strangulation can be caused
instantaneously. Admittedly, it is not the case of either ofPage 14
14
the parties that the death is caused by way of poisoning,
however, in order to rule out the possibility in this behalf
also, the stomach contents including viscera etc. preserved
by the team of doctors got analysed and as per report (Ex.PW
8/D), neither the contents of any poison nor any intoxicant
could be detected on analysis thereof.
17. Dr. K.C. Chopra (PW10) is specific while deposing in his
examinationinchief that strangulation in this case has not
been found to be caused by suspending the body. He also ruled
out the chances of dupattas (Ex.P2 and P3) being the ligature
used for strangulation by the deceased and to the contrary, he
specifically stated that drowning and strangulation are
possible in this case by dipping the face/mouth of the deceased
into the bucket (Ex.P8) filled with water and by applying
force in pressing her mouth therein.
18. Much stress was made by learned counsel appearing on
behalf of the respondent that there is no possibility of the
ears touching the top of bucket, even if mouth of anyone is
dipped therein and pressed with force. An effort was thus been
made to discard the testimony of PW10. However, in our view,
it is not so relevant as to whether the bucket used as a
ligature was touching the ears or not. Page 15
15
19. It is true that postmortem report(PW10/A) is not a
substantive piece of evidence. But the evidence of such doctor
cannot be insignificant. This Court in State of Haryana v. Ram
Singh, (2002)2 SCC 426 held as under:
“1. While it is true that the postmortem report by
itself is not a substantive piece of evidence, but
the evidence of the doctor conducting the postmortem
can by no means be ascribed to be insignificant. The
significance of the evidence of the doctor lies vis
àvis the injuries appearing on the body of the
deceased person and likely use of the weapon therefor
and it would then be the prosecutor’s duty and
obligation to have the corroborative evidence
available on record from the other prosecution
witnesses.”
20.In the present case, the postmortem was conducted by a
team of doctors, namely, Dr. K.C. Chopra and K.S. Dogra. In
crossexamination, no suggestion was made on behalf of the
defence that they were not competent or that Dr. K.C. Chopra
and Dr. K.S. Dogra have not expertised to perform post mortem
of a body. The viscera test was done by forensic expert (PW8),
who submitted the report.
21. From the aforesaid evidence, it is clear that Dr. K.C.
Chopra (PW10) conducted the post mortem and the forensic
expert (PW8) conducted the viscera test. The High Court
proceeded on erroneous premise to hold that “Dr. K.C. Choopra
might have acquired some experience as Medical Officer but hePage 16
16
is not a forensic expert to give the level of an expert witness
examined in the Court.”
22. The High Court was thus, clearly in error, in formulating
its own opinion based on conjectural premises and deciding the
case on the basis of that, discarding the opinion of the
medical experts regarding the nature of the injury and cause of
death. The conclusions are not sustainable otherwise also .
23. It is true that PW1, father of the deceased, PW2, brother
of the deceased and PW5 Prem Chand belong to the same
village. However they being related to each other and being
residents of the same place is not fatal to the prosecution
case, because they have deposed about the facts which are not
in controversy save and except that the deceased was being
tortured by the accused persons. However, the present case is
not a case of suicidal death of the deceased on being fedup
with the torture of the accused persons, but a case of
homicidal death and as such, the version of PWs. 1 and 2 in
this behalf is not so material.
24. The recovery of bucket(Ex.P8) has been proved as the same
has been produced by accused no. 1(respondent herein) himself
before the police as recorded in memo (Ex.PW5/C) recorded at
his instance in the presence of Prem Chand (PW5) and PyarePage 17
17
Lal. As a matter of fact, the bucket was lying in the courtyard
where it is identified by accused no. 1(respondent herein) and
thereafter, was taken into possession by the police. The
reference in this behalf can be made to the statement of Prem
Chand(PW5) who stated that accused no. 1 had shown the bucket
to the police which was sealed in a parcel and thereafter
taken into possession vide recovery memo ((Ex.PW5/C). Not
only this, he even identified the bucket(Ex.P8) to be the
same. The recovery of an incriminating article from a place
which is open and accessible to others, alone cannot vitiate
such recovery under Section 27 of the Indian Evidence Act.
Thus, the present is the case where there is no difficulty in
holding that the bucket(Ex.P8) is the same which was used by
the respondent(herein) for drowning and strangulating his wife,
Vidhya Devi.
25. Kartar Chand(PW3) is an independent witness. In his
testimony, he deposed that on his way to school on 13th July,
2001 from his village, when he reached Village Ulehra, (native
place of the accused) around 7.15 A.M., he met accused no.
1(respondent) and Deepak carrying the deceased on the cot to
the road side for carrying her to the hospital and it was the
accused no. 1(respondent herein) who told Kartar Chand(PW3)Page 18
18
that as she was ill, hence being taken to the hospital. The
accused no. 1 has thus, misrepresented the factual position to
PW3 which shows guilty intention on his part. No doubt, in
reply to question no. 11, he denied having represented so to
Kartar Chand(PW3) and as per his version, the said witness
was told that deceased had strangulated herself, but there is
no reason to disbelieve the testimony of PW3, as a matter of
fact, PW3 is an independent witness. Reply to question no.
11 shows that accused no. 1 also accepted that PW3 met him on
the spot in the early morning. Therefore, it cannot be said
that the PW3 was interested in the case of either of the
parties. Not only this, as per version of PW3, the deceased
at that time was silent and there was no movement in her body,
meaning thereby that she was already dead in the house itself
and in order to mislead the village folks and to create
evidence that he made efforts to save his wife’s life he took
her dead body to the hospital. Such conduct on his part amply
demonstrates that it is the accused no. 1 (respondent herein)
alone who caused the death of his wife, Vidhya Devi.
26. Post mortem report(PW10/A) prepared by Dr. K.C.
Chopra(PW10) shows that there was ligature mark on the neck of
the deceased. The opinion of the doctor is clear and definite
Page 19
19
that the ligature mark of 10cm long and 1.5 cm. wide in horizontal position cannot be caused by hanging but could have been caused by strangulation.
Medical evidence, therefore, completely falsify the case of accused no. 1(respondent herein).
The conduct of the accused no. 1 was also not natural.
When he found his wife hanging, he neither made hue and cry nor called the villagers nearby.
He along with others brought down the body of the deceased. He, even thereafter,
did not report the matter immediately on his own to police.
27. The act of bringing his wife, Vidhya Devi to the hospital
cannot absolve the guilt of accused no. 1(respondent herein) of
an offence committed by him. He was the best person who could
have explained the reasons for the horizontal ligature mark of
10 cm. x 1.5cm. on the neck of the deceased and as to why he
did not inform the matter to the villagers before bringing down
the body of the deceased.
28. Therefore, we find that all the findings by the Division
Bench of the High Court, rejecting the evidence of Dr. K.C.
Chopra (PW10) and other material witnesses including Kartar
Chand (PW3) and Prem Chand (PW5) are clearly unsustainable,
whereas those given by the Trial Court accepting the evidence
of these witnesses were weighty and sound. Page 20
20
29. Hence, we allow the appeal and set aside the impugned order
of acquittal passed by the Division Bench of the High Court of
Himachal Pradesh on 16th November, 2004 and convict the
accusedrespondent under Section 302 IPC for the murder of his
wife, Vidhya Devi and sentence him to imprisonment for life.
We, thereby restore the order of conviction passed against the
accusedrespondent by the Trial Court. The accusedrespondent
shall surrender immediately to serve out the remainder of the
sentence.
…………………………………………………………………………J.
(A.K. PATNAIK)
…………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 3,2013
