Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 06.07.2009
Judgment Pronounced on : 08 .07.2009
+ CRL. APPEAL NO.08/2001
VIJAY PAL …APPELLANT
Through : Mr.Sumeet Verma, Amicus Curiae.
VERSUS
STATE …RESPONDENT
Through : Mr.Pawan Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the
Digest? Yes.
PRADEEP NANDRAJOG, J.
1. Case of the prosecution is that the deceased Archana
Devi was married with the appellant Vijay Pal on 2.5.1996. In
the intervening night of 4.5.1996 and 5.5.1996, Archana Devi
was strangulated to death by the appellant Vijay Pal as also
the co-accused i.e. the father of the appellant, his mother and
his cousin Arjun Singh, all of whom were present in the house
where Archana Devi was murdered.
Crl. APPEAL No.08/2001 Page 1 of 20
2. Unfortunately, there is no evidence led as to under what
circumstances, how and when, information was first received
by the police about the death of Archana Devi which triggered
the investigation of the instant case. The evidence on record
commenced with proof of the fact that ASI Jagdish Parshad
reached the house where the deceased was murdered i.e. her
matrimonial house around 8 A.M. on 5.5.1996.
3. He met Shyam Vir Singh, the father of Archana Devi, and
recorded his statement Ex.PW-5/A to the effect that Archana
was married to Vijay Pal on 2.5.1996 and that he had given
dowry according to his means, but the accused persons
namely Vijay Pal, his parents and his cousin i.e. the co-accused
were not satisfied with the dowry and had demanded
Rs.31,000/- in cash and a motorcycle. He could not meet the
said demand and therefore he suspected that the accused
persons had murdered his daughter.
4. ASI Jagdish Parshad made an endorsement Ex.PW-7/A on
the statement of Shyam Vir Singh and on the basis of the
same got an FIR Ex.PW-7/B registered at around 10.45 PM. He
summoned Uday Vir PW-3, who took photographs Ex.P-6 to
Ex.P-8 of the dead body and the place of the crime. The dead
body was sent to the General Hospital Gurgaon for post-
mortem.
Crl. APPEAL No.08/2001 Page 2 of 20
5. Since the death of Archana Devi was caused under
suspicious circumstances within seven years of her marriage,
and the father of the deceased had told the investigating
officer that his daughter was harassed for dowry, ASI Jagdish
recorded a prima facie opinion that at least the offence
punishable under Section 304-B/34 IPC as also Section 498-
A/34 IPC was made out.
6. The accused persons were arrested and interrogated. On
6.5.1996, the appellant Vijay Pal made a disclosure statement
Ex.PW-5/L, wherein, inter-alia he disclosed that he had
strangulated to death his wife and could get recovered from a
room in the house a „Rassi‟ (rope) i.e. ligature material used to
strangulate her to death. Thereafter, the appellant led the
investigating officer to a room in the house and got a rassi
(rope) recovered from beneath a trunk lying in the south east
corner of the room situated to the south east of the house.
The same was seized by ASI Jagdish Prasad vide seizure memo
Ex.PW-5/M.
7. On 6.5.1996 Dr.S.K.Sharma PW-2 conducted the post-
mortem of the dead body at 11:30 AM at the General Hospital,
Gurgaon and prepared the post-mortem report Ex.PC. Dr.
S.K.Sharma opined that the body had a faint ligature mark
which was almost horizontal on the upper part of the neck. He
Crl. APPEAL No.08/2001 Page 3 of 20
opined the cause of death to be asphyxia due to ligature
strangulation. The viscera of the deceased was handed over
to the investigating officer who in turn forwarded the same for
forensic opinion and the report was furnished to him that no
poison was detected. In view of the post-mortem report,
prima-facie offence of murder was made out.
8. Charges were framed against the accused for the offence
punishable under Section 302/34 IPC and alternatively under
Section 304-B/34 IPC as also the offence punishable under
Section 498-A IPC. For record it may be noted that since the
crime was committed in Gurgaon (Haryana) the chargesheet
was filed in the Court of the District Judge, Gurgaon and
charges were framed by him. Thereafter, under orders of the
Supreme Court, the trial was transferred to Delhi and evidence
was recorded by a Sessions Court in Delhi.
9. At the trial, the prosecution examined seven witnesses.
Needless to state, Dr.S.K.Sharma PW-2, proved the post-
mortem report Ex.PC and also deposed that the rope Ex.P-5
recovered by the investigating officer as recorded in the
seizure memo Ex.PW-5/M could be the one with which the
deceased was strangulated. Uday Vir PW-3, proved the
photographs Ex.P-6 to Ex.P-8 and the negatives Ex.P-9 to Ex.P-
11 taken by him.
Crl. APPEAL No.08/2001 Page 4 of 20
10. Jag Pal PW-4 deposed that he was a cousin of the
deceased and that the deceased was married with the
appellant on 2.5.1996 and that nothing untoward happened
after the marriage and that no dowry was demanded.
11. Shyam Vir Singh PW-5, the father of the deceased
deposed that deceased Archana was his daughter and she was
married to the appellant on 2.5.1996. He gave Rs.21,000/- in
cash, one scooter, a television, a table fan, a cooler, a sewing
machine and some other articles as dowry. The marriage was
solemnized peacefully. On 5.5.1996, the accused sent a
relative to inform them that Archana had fallen sick. His wife,
his niece, his sister-in-law, his sister, Chander Pal PW-6, a
relative Birender and he went to the house of the appellant.
The police were already present when they reached. They
found Archana dead. He identified her dead body. The police
officer read over a statement to him which he found correct
and signed it. The accused persons were taken to the police
station in his presence but were not arrested in his presence.
12. On being cross-examined by the learned APP he denied
having told the investigating officer that the accused persons
had demanded Rs.31,000/- in cash and a motor-cycle and that
as he could not fulfill the same, they killed Archana.
Crl. APPEAL No.08/2001 Page 5 of 20
13. Relevant would it be to note that on being cross-
examined by counsel for the appellant, he denied that his
daughter was not willing to marry the appellant Vijay Pal as he
was less educated than his daughter.
14. Chander Pal Singh PW-6 deposed that after the marriage
of the appellant with the deceased no incident of dowry
demand took place and that the marriage was solemnized
peacefully.
15. Insp. Shiv Narain PW-7, deposed that the investigation of
the case was done under his supervision. On 5.5.1996 the
investigation of the case was conducted by ASI Jagdish
Parshad. ASI Jagdish Parshad had expired and that he
recognized the handwriting of ASI Jagdish Parshad and that the
disclosure statement Ex.PW-5/L of the appellant as also the
recovery memo Ex.PW-5/M were in the handwriting of ASI
Jagdish Parshad.
16. The defence examined Taras Pal as DW-1. He deposed
that Jai Pal is his brother-in-law and Vijay Pal is his nephew.
Vijay Pal was married on 2.5.1996 and he stayed at the house
of Vijay Pal till 7.5.1996. Vijay Pal was sleeping separate from
his wife as their village followed a custom that unless a Puja
was performed, the bride and groom could not even speak to
each other. On the day of the incident, at about 6:00 A.M. he
Crl. APPEAL No.08/2001 Page 6 of 20
woke up on hearing noises and learnt that Archana was dead.
He went to the house of the parents of Archana and informed
them about her death. On hearing the same, Archana‟s mother
said to her husband that since he i.e. father of the deceased,
married Archana against her wishes, Archana killed herself. On
cross-examination he stated that he did not see the body of
the deceased.
17. In view of the fact that the relatives of Archana departed
from their statements made by them under Section 161 Cr.P.C.
to the investigating officer and denied having ever told the
investigating officer that after the marriage ceremony was
over on 2.5.1996 and before the bride and the groom could
depart a demand for dowry was raised by the accused coupled
with the fact that there was no evidence that Archana was
treated with cruelty after her marriage and before she died,
the learned Trial Judge held that an essential ingredient of
Section 304-B IPC i.e. a demand of dowry or cruelty towards
the deceased was not proved. Hence, all the accused were
acquitted for the charge of the offence punishable under
Section 498-A IPC as also the charge for the offence
punishable under Section 304-B/34 IPC.
18. There being no eye-witness and noting the fact that the
evidence established the presence of all the accused in the
Crl. APPEAL No.08/2001 Page 7 of 20
house and that there was no evidence to show that any
outsider entered the house, the learned Trial Judge acquitted
the parents of the appellant and his cousin who were present
in the house in the night when Archana was killed, the learned
Trial Judge has convicted the appellant for the reason the post-
mortem report conclusively established that the deceased was
strangulated to death and did not commit suicide coupled with
the fact that the room in which the deceased died was the
room in which she slept with the appellant as also the fact that
the appellant got recovered the rope Ex.P-5 with the further
fact that the appellant could not prove any custom that till a
special puja was held he could not be in the company of his
wife. We may note, on an analysis of the impugned decision,
the following circumstances held relevant by the learned Trial
Judge:-
a) Presence of the appellant in the house at the relevant
time:-
Appellant tried to prove that Archana was alone in her
room on the night of the incident through DW-1 Taras
Pal who deposed that as per custom, Vijay Pal could not
have any relation with Archana before some prayers
were performed which were to be performed the next
morning. No such custom was proved.
Crl. APPEAL No.08/2001 Page 8 of 20
b) Homicidal Death:-
The Post-mortem report shows that a ligature mark was
found around the neck of the deceased and that the
death was caused due to asphyxia due to ligature
strangulation.
The plea of suicidal strangulation by the accused persons
is ruled out because: firstly, it is not a case of hanging as
the photographs show Archana lying on a cot and that
she was found lying on the cot; secondly, according to
Modi‟s Medical jurisprudence suicide by self strangulation
is not possible.
c) Possibility of involvement of outsider is ruled out:-
There was no evidence to even remotely suggest that an
outsider could have entered the house and committed
the crime and left.
d) Only Vijay Pal had access to the room:-
The post mortem report opined that the time of death
was 24 hours to 30 hours before the time of the post-
mortem which was conducted at 11:30 AM on 6.5.1996,
meaning thereby the likely time of death was between
5:30 AM to 11:30 AM on 5.5.1996. Though not expressly
stated in the decision, the fact that information
pertaining to the death was available with the police
Crl. APPEAL No.08/2001 Page 9 of 20
before 8:00 AM evidenced by the fact that ASI Jagdish
Parshad had reached the house around 8:00 AM and had
met the father of the deceased who had likewise reached
the house on being informed of the death, the likely time
of death of the deceased has been treated to be in the
early hours of the morning.
e) Recovery of ligature material i.e. rassi at the instance of
accused Vijay Pal:-
The fact that the appellant got recovered the rope Ex.P-5
which was opined by PW-2 as capable of being used to
strangulate the deceased.
19. We may note at the outset that Shri Sumeet Verma,
learned counsel for the appellant did not challenge the fact
that the deceased suffered a homicidal death for the obvious
reason the alternative cause of death i.e. suicide was ruled out
with reference to the post-mortem report which recorded
horizontal ligature marks on the neck of the deceased.
Medical jurisprudence guides us that in case of suicide the
ligature marks move upwards towards the chin and are not
horizontally placed.
20. The submission which was urged at the hearing held on
6.7.2009 was predicated on two decisions of the Supreme
Court reported as 2009 (2) JCC 1076 Syed Hakkim & Anr. vs.
Crl. APPEAL No.08/2001 Page 10 of 20
State and AIR 1974 SC 778 Sawal Das vs. State of Bihar . Both
cases related to the death of a bride in her matrimonial house
at a time when apart from the husband even other family
members were present. In both decisions, the convictions of
the husbands for the offence of murder were set aside by the
Supreme Court.
21. Submission urged by learned counsel for the appellant
was that there was no direct evidence that the appellant had
murdered his wife. It was urged that any member of the
family present in the house could be the offender. It was
urged that the evidence against the appellant was no different
vis-à-vis the evidence against the other accused. Counsel
submitted that the appellant has been convicted on a mere
suspicion.
22. Strictly speaking, there cannot be a precedent in a
criminal trial for the reason each criminal trial unfolds its own
story. Of course, guidance can be taken from decisions as to
in what manner, incriminating evidence has been marshaled to
draw inferences by Courts. We may hasten to add that such
an exercise is conducted by Courts to be guided by reason and
logic and not to be bound by previous decisions.
23. In Sawal Das’s case (supra) the incriminating evidence
was a fight between the mother of Sawal Das and the wife of
Crl. APPEAL No.08/2001 Page 11 of 20
Sawal Das with further evidence that during the fight, mother
of Sawal Das called the appellant informing him that his wife
was fighting with her and further saying that either she i.e. the
mother of Sawal Das or his wife would henceforth live in the
house. At that, Sawal Das and his father Jamuna Parshad took
the deceased inside a room and were soon followed by the
mother of Sawal Das. The deceased was found dead and
neighbours had seen the appellant and his father bringing a
gunny bag and remove the dead body of the wife of Sawal
Das. The trial court convicted Sawal Das, his mother and his
father for the offence punishable under Section 302/34 IPC. In
appeal, the High Court acquitted the parents of Sawal Das and
convicted him for the offence punishable under Section 302
IPC. Before the Supreme Court, Sawal Das urged that there
was no evidence to show or reveal as to what had happened
inside the room and hence he could not be convicted for the
offence of murder of his wife. Dealing with the submission, in
para 12 of the decision, the Supreme Court noted as under:-
“12. We find that the High Court had not dealt with
the question whether a distinction could be made
between the case of the appellant on the one hand
and his father Jamuna Prasand and his step-mother
Kalawati on the other quite satisfactorily, so far as the
offence of murder is concerned. Nevertheless, we
may have agreed with its conclusion on the evidence
on record that the appellant alone was liable for the
murder of his wife Smt.Chanda Devi and we may not
Crl. APPEAL No.08/2001 Page 12 of 20
have disturbed its finding of fact but for another
feature of the case which stares one in the face. We
proceed now to deal with this feature.”
24. It is apparent from a perusal of para 12 noted herein
above, that the Supreme Court recorded a finding that
notwithstanding the High Court not drawing a distinction vis-à-
vis the role of Sawal Das and his parents, the conviction would
have been affirmed but for a peculiar feature of the case which
stared the Court in its face.
25. A further perusal of the decision shows that in para 13
onward, said peculiar feature was noted being evidence on
record that the maid servant of the family Geeta Kurmini who
was admittedly present in the house and her not being
examined. The Supreme Court discussed said facet being
important and the handicap faced by the Court in not
examining Geeta Kurmini, in the following words:-
“13. …………… But, there is no explanation even
attempted to show why the Maidservant, Geeta
Kurmini, who, according to the prosecution case, was
also in the Verandah at the time of the occurrence,
was not produced at the Trial although her statement
was recorded under Section 164 Criminal Procedure
Code and was brought on the record (Ex.12). The
statement could only be used as evidence to
corroborate or contradict Geeta Kurmini if she had
appeared as a witness at the trial. The appellant
could, therefore, quite reasonably ask the Court to
give him the benefit of the optional presumption under
Section 114 Illustration (g) of the Evidence Act and to
infer that if she had been produced it would have
damaged the prosecution case against the appellant.
Crl. APPEAL No.08/2001 Page 13 of 20
Her statement, if it had been there as evidence in the
case, may very well have shown that it was Jamuna
who was taking the leading part in bringing about the
death of Smt.Chandna Devi. There is some evidence
in the case as to the kind of man Jamuna was. It
shows that he was not a naturally kind or gentle or
amiable individual liked by the people. The normal
inhibitions of a father-in-law with regard to his
daughter-in-law, which learned Counsel for the State
emphasized so much, may not really be there at all in
this case. Indeed, we think that in the circumstances
of the case, Geeta Kurmini, the maidservant, was a
witness essential to the unfolding of the prosecution
case. Her evidence could not be withheld by the
prosecution whatever may be its effect upon the case.
We think that the principle laid down by Privy Council
in Stephen Seneviratne v. The King, AIR 1936 PC 289
at p.300 (37 Cri. L.J. 963) with regard to such a
witness, is applicable here. It was observed there (at
p.300):-
“Their Lordships do not desire to lay down any
rules to fetter discretion on a matter such as this
which is so-dependent on the particular
circumstances of each case. Still less do they
desire to discourage the utmost candour and
fairness on the part of those conducting
prosecutions: but, at the same time they cannot,
speaking generally, approve of an idea that a
prosecution must call witnesses irrespective of
considerations of number and of reliability, or
that a prosecution ought to discharge the
functions both of prosecution and defence. If it
does so, confusion is very apt to result and never
is it more likely to result than if the prosecution
calls witnesses and then proceeds almost
automatically to discredit them by cross-
examination. Witnesses essential to the
unfolding of the narrative on which the
prosecution is based, must, of course, be called
by the prosecution, whether in the result of the
effect of their testimony is for or against the case
for the prosecution.””
Crl. APPEAL No.08/2001 Page 14 of 20
26. Instant case has no such feature as was noted in Sawal
Das’s case (supra).
27. The decision in Saeed Hakim’s case (supra) is also clearly
distinguishable as peculiar to the facts of the said case. As
noted in para 3 of the said decision, two circumstances were
highlighted by the trial court and the High Court to convict the
appellants who were the husband and the father-in-law of the
deceased. We reproduce the said two circumstances as noted
by the Supreme Court:-
“Two circumstances were highlighted to fasten the
guilt on the accused. The plea of alibi set up by A-1
having been dis-believed it must be presumed that he
was guilty. Similarly, in respect of A-2 plea of suicide
was ruled out by the evidence of doctor (PW-9). A-2
was held to be guilty. On the aforesaid ground the
trial Court convicted the present appellants and the
High Court concurred with the view of the trial Court.”
28. The Supreme Court held that it was settled law that in
a case of circumstantial evidence the Panchsheel i.e. the five
principles were well known being: (a) the circumstances from
which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned „must‟ or „should‟
and not „may be‟ established; (b) the facts so established
should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty; (c) the
Crl. APPEAL No.08/2001 Page 15 of 20
circumstances should be of a conclusive nature and tendency;
(d) they should exclude every possible hypothesis except the
one to be proved; and (e) there must be a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have
been done by the accused.
29. It was opined that applying the said five principles, it
could not be held that the twin circumstance on which
convictions were sustained by the Trial Judge and the High
Court were forming a complete chain to draw the presumption
of guilt.
30. In the instant case the following are the incriminating
circumstances against the appellant:-
(a) The room in the residential house where the deceased
was killed is the room in which the deceased went to
sleep and was killed in her sleep. She was married to
the appellant only three days prior. There is no
evidence of family custom that till a special puja was
held, the appellant could not sleep with his wife. An
inference has to be drawn that as all newly married
couples would do, the appellant slept with his wife in
the room in which she was killed.
Crl. APPEAL No.08/2001 Page 16 of 20
(b) The time of death has to be the early hours of the
morning for the reason by 8:00 AM when ASI Jagdish
Parshad reached the house on receiving information of
the death, the father of the deceased was present
whose statement Ex.PW-5/A was recorded by ASI
Jagdish Parshad. Obviously, somebody had informed
the father of the deceased of the death and there
upon he left his house and reached the house of his
daughter i.e. the matrimonial house in which the
appellant and the deceased were residing. It is
important to note that as per DW-1 when he got up at
6:00 AM he learnt that the deceased had died and that
he had himself gone to the house of the father of the
deceased to break the news. Information was not
transmitted over the telephone. Obviously, travelling
time has to be taken into account. Thus evidence
establishes that the deceased was killed prior to 6:00
AM in the morning.
(c) There is no evidence of any outsider entering the
house.
(d) The rope Ex.P-5 was got recovered by the appellant. It
has been opined to be the one with which the
deceased could be strangulated to death.
Crl. APPEAL No.08/2001 Page 17 of 20
(e) Admittedly, death is homicidal and not suicidal.
31. The recovery of the rope Ex.P-5 pursuant to the
disclosure statement of the appellant followed by his leading
the investigating officer to a corner of a room in his house and
from beneath a trunk (hidden to the eye) getting the rope
recovered and the opinion of the doctor that the ligature
marks on the neck of the deceased could be caused by the
rope coupled with the time of death of the deceased being
early hours of the morning and the room being one amongst
the various rooms in the house where the deceased slept
coupled with the fact that the marriage had lasted only three
days and the fact that the appellant was present in the house,
form a complete chain of circumstances from which an
inference of innocence can be ruled out and inference of guilt
can be inferred against the appellant. It is also important to
note that the line of defence adopted by the appellant,
evidenced by the suggestions given to the father of the
deceased, is that the deceased was unhappy with the
marriage because she was more qualified than the appellant
and for this reason she committed suicide. The appellant said
so, as an explanation for the death of his wife, when examined
under Section 313 Cr.P.C. Now, death is not suicidal. In the
absence of any evidence of dowry demand or cruelty, the only
Crl. APPEAL No.08/2001 Page 18 of 20
possible motive which emerges is the refusal by the wife to
have anything to do with the husband, infuriating the husband,
for reasons which are obvious: a denial of self by a newly
married bride to the husband. But, we need not speculate for
the reason it is not necessary to bring out motive in every
case, though in a case of circumstantial evidence, motive
assumes significance and is treated as a weighty
circumstance; failure to prove not being treated as fatal.
32. In a somewhat similar facts, in the decision reported as JT
2008 (1) SC 297 Bija & Ors. vs. State of Haryana , acquitting
the in-laws the husband of the deceased was convicted for the
offence of murdering his wife on circumstantial evidence, the
most important circumstance being of the husband being
proved to be present in the room with his wife in the
intervening night of first and second May 1998 and the dead
nd
body of his wife being found in the morning of 2 May 1998.
Notwithstanding there being other family members present in
the house, the husband was convicted for the afore-noted
reason.
33. It is apparent that where a housewife is killed in the
matrimonial house, where, apart from the husband, other
family (in-laws) members are present, the exact place and the
time of death assumes importance and has received special
Crl. APPEAL No.08/2001 Page 19 of 20
attention of the Supreme Court. Where the place happens to
be the room where the husband and wife used to sleep and
the time is either the night or the wee hours of the morning,
the needle of suspicion on the husband has been held to be no
longer a needle of suspicion, but a compass needle unerringly
pointing towards the guilt of the husband. The reason is
obvious. It is the husband and the wife who sleep together in
a room and not the other family members. Anything
happening in the night or the wee hours of the morning has to
be accounted for by the husband and his silence is akin to
owning up the guilt.
34. We find no merit in the appeal. The appeal is dismissed.
35. Since the appellant is on bail, the bail bond and surety
bond are cancelled. The appellant is directed to surrender and
suffer the sentence.
PRADEEP NANDRAJOG, J.
INDERMEET KAUR, J.
July 08, 2009
dharmender
Crl. APPEAL No.08/2001 Page 20 of 20
% Judgment Reserved on : 06.07.2009
Judgment Pronounced on : 08 .07.2009
+ CRL. APPEAL NO.08/2001
VIJAY PAL …APPELLANT
Through : Mr.Sumeet Verma, Amicus Curiae.
VERSUS
STATE …RESPONDENT
Through : Mr.Pawan Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be
allowed to see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the
Digest? Yes.
PRADEEP NANDRAJOG, J.
1. Case of the prosecution is that the deceased Archana
Devi was married with the appellant Vijay Pal on 2.5.1996. In
the intervening night of 4.5.1996 and 5.5.1996, Archana Devi
was strangulated to death by the appellant Vijay Pal as also
the co-accused i.e. the father of the appellant, his mother and
his cousin Arjun Singh, all of whom were present in the house
where Archana Devi was murdered.
Crl. APPEAL No.08/2001 Page 1 of 20
2. Unfortunately, there is no evidence led as to under what
circumstances, how and when, information was first received
by the police about the death of Archana Devi which triggered
the investigation of the instant case. The evidence on record
commenced with proof of the fact that ASI Jagdish Parshad
reached the house where the deceased was murdered i.e. her
matrimonial house around 8 A.M. on 5.5.1996.
3. He met Shyam Vir Singh, the father of Archana Devi, and
recorded his statement Ex.PW-5/A to the effect that Archana
was married to Vijay Pal on 2.5.1996 and that he had given
dowry according to his means, but the accused persons
namely Vijay Pal, his parents and his cousin i.e. the co-accused
were not satisfied with the dowry and had demanded
Rs.31,000/- in cash and a motorcycle. He could not meet the
said demand and therefore he suspected that the accused
persons had murdered his daughter.
4. ASI Jagdish Parshad made an endorsement Ex.PW-7/A on
the statement of Shyam Vir Singh and on the basis of the
same got an FIR Ex.PW-7/B registered at around 10.45 PM. He
summoned Uday Vir PW-3, who took photographs Ex.P-6 to
Ex.P-8 of the dead body and the place of the crime. The dead
body was sent to the General Hospital Gurgaon for post-
mortem.
Crl. APPEAL No.08/2001 Page 2 of 20
5. Since the death of Archana Devi was caused under
suspicious circumstances within seven years of her marriage,
and the father of the deceased had told the investigating
officer that his daughter was harassed for dowry, ASI Jagdish
recorded a prima facie opinion that at least the offence
punishable under Section 304-B/34 IPC as also Section 498-
A/34 IPC was made out.
6. The accused persons were arrested and interrogated. On
6.5.1996, the appellant Vijay Pal made a disclosure statement
Ex.PW-5/L, wherein, inter-alia he disclosed that he had
strangulated to death his wife and could get recovered from a
room in the house a „Rassi‟ (rope) i.e. ligature material used to
strangulate her to death. Thereafter, the appellant led the
investigating officer to a room in the house and got a rassi
(rope) recovered from beneath a trunk lying in the south east
corner of the room situated to the south east of the house.
The same was seized by ASI Jagdish Prasad vide seizure memo
Ex.PW-5/M.
7. On 6.5.1996 Dr.S.K.Sharma PW-2 conducted the post-
mortem of the dead body at 11:30 AM at the General Hospital,
Gurgaon and prepared the post-mortem report Ex.PC. Dr.
S.K.Sharma opined that the body had a faint ligature mark
which was almost horizontal on the upper part of the neck. He
Crl. APPEAL No.08/2001 Page 3 of 20
opined the cause of death to be asphyxia due to ligature
strangulation. The viscera of the deceased was handed over
to the investigating officer who in turn forwarded the same for
forensic opinion and the report was furnished to him that no
poison was detected. In view of the post-mortem report,
prima-facie offence of murder was made out.
8. Charges were framed against the accused for the offence
punishable under Section 302/34 IPC and alternatively under
Section 304-B/34 IPC as also the offence punishable under
Section 498-A IPC. For record it may be noted that since the
crime was committed in Gurgaon (Haryana) the chargesheet
was filed in the Court of the District Judge, Gurgaon and
charges were framed by him. Thereafter, under orders of the
Supreme Court, the trial was transferred to Delhi and evidence
was recorded by a Sessions Court in Delhi.
9. At the trial, the prosecution examined seven witnesses.
Needless to state, Dr.S.K.Sharma PW-2, proved the post-
mortem report Ex.PC and also deposed that the rope Ex.P-5
recovered by the investigating officer as recorded in the
seizure memo Ex.PW-5/M could be the one with which the
deceased was strangulated. Uday Vir PW-3, proved the
photographs Ex.P-6 to Ex.P-8 and the negatives Ex.P-9 to Ex.P-
11 taken by him.
Crl. APPEAL No.08/2001 Page 4 of 20
10. Jag Pal PW-4 deposed that he was a cousin of the
deceased and that the deceased was married with the
appellant on 2.5.1996 and that nothing untoward happened
after the marriage and that no dowry was demanded.
11. Shyam Vir Singh PW-5, the father of the deceased
deposed that deceased Archana was his daughter and she was
married to the appellant on 2.5.1996. He gave Rs.21,000/- in
cash, one scooter, a television, a table fan, a cooler, a sewing
machine and some other articles as dowry. The marriage was
solemnized peacefully. On 5.5.1996, the accused sent a
relative to inform them that Archana had fallen sick. His wife,
his niece, his sister-in-law, his sister, Chander Pal PW-6, a
relative Birender and he went to the house of the appellant.
The police were already present when they reached. They
found Archana dead. He identified her dead body. The police
officer read over a statement to him which he found correct
and signed it. The accused persons were taken to the police
station in his presence but were not arrested in his presence.
12. On being cross-examined by the learned APP he denied
having told the investigating officer that the accused persons
had demanded Rs.31,000/- in cash and a motor-cycle and that
as he could not fulfill the same, they killed Archana.
Crl. APPEAL No.08/2001 Page 5 of 20
13. Relevant would it be to note that on being cross-
examined by counsel for the appellant, he denied that his
daughter was not willing to marry the appellant Vijay Pal as he
was less educated than his daughter.
14. Chander Pal Singh PW-6 deposed that after the marriage
of the appellant with the deceased no incident of dowry
demand took place and that the marriage was solemnized
peacefully.
15. Insp. Shiv Narain PW-7, deposed that the investigation of
the case was done under his supervision. On 5.5.1996 the
investigation of the case was conducted by ASI Jagdish
Parshad. ASI Jagdish Parshad had expired and that he
recognized the handwriting of ASI Jagdish Parshad and that the
disclosure statement Ex.PW-5/L of the appellant as also the
recovery memo Ex.PW-5/M were in the handwriting of ASI
Jagdish Parshad.
16. The defence examined Taras Pal as DW-1. He deposed
that Jai Pal is his brother-in-law and Vijay Pal is his nephew.
Vijay Pal was married on 2.5.1996 and he stayed at the house
of Vijay Pal till 7.5.1996. Vijay Pal was sleeping separate from
his wife as their village followed a custom that unless a Puja
was performed, the bride and groom could not even speak to
each other. On the day of the incident, at about 6:00 A.M. he
Crl. APPEAL No.08/2001 Page 6 of 20
woke up on hearing noises and learnt that Archana was dead.
He went to the house of the parents of Archana and informed
them about her death. On hearing the same, Archana‟s mother
said to her husband that since he i.e. father of the deceased,
married Archana against her wishes, Archana killed herself. On
cross-examination he stated that he did not see the body of
the deceased.
17. In view of the fact that the relatives of Archana departed
from their statements made by them under Section 161 Cr.P.C.
to the investigating officer and denied having ever told the
investigating officer that after the marriage ceremony was
over on 2.5.1996 and before the bride and the groom could
depart a demand for dowry was raised by the accused coupled
with the fact that there was no evidence that Archana was
treated with cruelty after her marriage and before she died,
the learned Trial Judge held that an essential ingredient of
Section 304-B IPC i.e. a demand of dowry or cruelty towards
the deceased was not proved. Hence, all the accused were
acquitted for the charge of the offence punishable under
Section 498-A IPC as also the charge for the offence
punishable under Section 304-B/34 IPC.
18. There being no eye-witness and noting the fact that the
evidence established the presence of all the accused in the
Crl. APPEAL No.08/2001 Page 7 of 20
house and that there was no evidence to show that any
outsider entered the house, the learned Trial Judge acquitted
the parents of the appellant and his cousin who were present
in the house in the night when Archana was killed, the learned
Trial Judge has convicted the appellant for the reason the post-
mortem report conclusively established that the deceased was
strangulated to death and did not commit suicide coupled with
the fact that the room in which the deceased died was the
room in which she slept with the appellant as also the fact that
the appellant got recovered the rope Ex.P-5 with the further
fact that the appellant could not prove any custom that till a
special puja was held he could not be in the company of his
wife. We may note, on an analysis of the impugned decision,
the following circumstances held relevant by the learned Trial
Judge:-
a) Presence of the appellant in the house at the relevant
time:-
Appellant tried to prove that Archana was alone in her
room on the night of the incident through DW-1 Taras
Pal who deposed that as per custom, Vijay Pal could not
have any relation with Archana before some prayers
were performed which were to be performed the next
morning. No such custom was proved.
Crl. APPEAL No.08/2001 Page 8 of 20
b) Homicidal Death:-
The Post-mortem report shows that a ligature mark was
found around the neck of the deceased and that the
death was caused due to asphyxia due to ligature
strangulation.
The plea of suicidal strangulation by the accused persons
is ruled out because: firstly, it is not a case of hanging as
the photographs show Archana lying on a cot and that
she was found lying on the cot; secondly, according to
Modi‟s Medical jurisprudence suicide by self strangulation
is not possible.
c) Possibility of involvement of outsider is ruled out:-
There was no evidence to even remotely suggest that an
outsider could have entered the house and committed
the crime and left.
d) Only Vijay Pal had access to the room:-
The post mortem report opined that the time of death
was 24 hours to 30 hours before the time of the post-
mortem which was conducted at 11:30 AM on 6.5.1996,
meaning thereby the likely time of death was between
5:30 AM to 11:30 AM on 5.5.1996. Though not expressly
stated in the decision, the fact that information
pertaining to the death was available with the police
Crl. APPEAL No.08/2001 Page 9 of 20
before 8:00 AM evidenced by the fact that ASI Jagdish
Parshad had reached the house around 8:00 AM and had
met the father of the deceased who had likewise reached
the house on being informed of the death, the likely time
of death of the deceased has been treated to be in the
early hours of the morning.
e) Recovery of ligature material i.e. rassi at the instance of
accused Vijay Pal:-
The fact that the appellant got recovered the rope Ex.P-5
which was opined by PW-2 as capable of being used to
strangulate the deceased.
19. We may note at the outset that Shri Sumeet Verma,
learned counsel for the appellant did not challenge the fact
that the deceased suffered a homicidal death for the obvious
reason the alternative cause of death i.e. suicide was ruled out
with reference to the post-mortem report which recorded
horizontal ligature marks on the neck of the deceased.
Medical jurisprudence guides us that in case of suicide the
ligature marks move upwards towards the chin and are not
horizontally placed.
20. The submission which was urged at the hearing held on
6.7.2009 was predicated on two decisions of the Supreme
Court reported as 2009 (2) JCC 1076 Syed Hakkim & Anr. vs.
Crl. APPEAL No.08/2001 Page 10 of 20
State and AIR 1974 SC 778 Sawal Das vs. State of Bihar . Both
cases related to the death of a bride in her matrimonial house
at a time when apart from the husband even other family
members were present. In both decisions, the convictions of
the husbands for the offence of murder were set aside by the
Supreme Court.
21. Submission urged by learned counsel for the appellant
was that there was no direct evidence that the appellant had
murdered his wife. It was urged that any member of the
family present in the house could be the offender. It was
urged that the evidence against the appellant was no different
vis-à-vis the evidence against the other accused. Counsel
submitted that the appellant has been convicted on a mere
suspicion.
22. Strictly speaking, there cannot be a precedent in a
criminal trial for the reason each criminal trial unfolds its own
story. Of course, guidance can be taken from decisions as to
in what manner, incriminating evidence has been marshaled to
draw inferences by Courts. We may hasten to add that such
an exercise is conducted by Courts to be guided by reason and
logic and not to be bound by previous decisions.
23. In Sawal Das’s case (supra) the incriminating evidence
was a fight between the mother of Sawal Das and the wife of
Crl. APPEAL No.08/2001 Page 11 of 20
Sawal Das with further evidence that during the fight, mother
of Sawal Das called the appellant informing him that his wife
was fighting with her and further saying that either she i.e. the
mother of Sawal Das or his wife would henceforth live in the
house. At that, Sawal Das and his father Jamuna Parshad took
the deceased inside a room and were soon followed by the
mother of Sawal Das. The deceased was found dead and
neighbours had seen the appellant and his father bringing a
gunny bag and remove the dead body of the wife of Sawal
Das. The trial court convicted Sawal Das, his mother and his
father for the offence punishable under Section 302/34 IPC. In
appeal, the High Court acquitted the parents of Sawal Das and
convicted him for the offence punishable under Section 302
IPC. Before the Supreme Court, Sawal Das urged that there
was no evidence to show or reveal as to what had happened
inside the room and hence he could not be convicted for the
offence of murder of his wife. Dealing with the submission, in
para 12 of the decision, the Supreme Court noted as under:-
“12. We find that the High Court had not dealt with
the question whether a distinction could be made
between the case of the appellant on the one hand
and his father Jamuna Prasand and his step-mother
Kalawati on the other quite satisfactorily, so far as the
offence of murder is concerned. Nevertheless, we
may have agreed with its conclusion on the evidence
on record that the appellant alone was liable for the
murder of his wife Smt.Chanda Devi and we may not
Crl. APPEAL No.08/2001 Page 12 of 20
have disturbed its finding of fact but for another
feature of the case which stares one in the face. We
proceed now to deal with this feature.”
24. It is apparent from a perusal of para 12 noted herein
above, that the Supreme Court recorded a finding that
notwithstanding the High Court not drawing a distinction vis-à-
vis the role of Sawal Das and his parents, the conviction would
have been affirmed but for a peculiar feature of the case which
stared the Court in its face.
25. A further perusal of the decision shows that in para 13
onward, said peculiar feature was noted being evidence on
record that the maid servant of the family Geeta Kurmini who
was admittedly present in the house and her not being
examined. The Supreme Court discussed said facet being
important and the handicap faced by the Court in not
examining Geeta Kurmini, in the following words:-
“13. …………… But, there is no explanation even
attempted to show why the Maidservant, Geeta
Kurmini, who, according to the prosecution case, was
also in the Verandah at the time of the occurrence,
was not produced at the Trial although her statement
was recorded under Section 164 Criminal Procedure
Code and was brought on the record (Ex.12). The
statement could only be used as evidence to
corroborate or contradict Geeta Kurmini if she had
appeared as a witness at the trial. The appellant
could, therefore, quite reasonably ask the Court to
give him the benefit of the optional presumption under
Section 114 Illustration (g) of the Evidence Act and to
infer that if she had been produced it would have
damaged the prosecution case against the appellant.
Crl. APPEAL No.08/2001 Page 13 of 20
Her statement, if it had been there as evidence in the
case, may very well have shown that it was Jamuna
who was taking the leading part in bringing about the
death of Smt.Chandna Devi. There is some evidence
in the case as to the kind of man Jamuna was. It
shows that he was not a naturally kind or gentle or
amiable individual liked by the people. The normal
inhibitions of a father-in-law with regard to his
daughter-in-law, which learned Counsel for the State
emphasized so much, may not really be there at all in
this case. Indeed, we think that in the circumstances
of the case, Geeta Kurmini, the maidservant, was a
witness essential to the unfolding of the prosecution
case. Her evidence could not be withheld by the
prosecution whatever may be its effect upon the case.
We think that the principle laid down by Privy Council
in Stephen Seneviratne v. The King, AIR 1936 PC 289
at p.300 (37 Cri. L.J. 963) with regard to such a
witness, is applicable here. It was observed there (at
p.300):-
“Their Lordships do not desire to lay down any
rules to fetter discretion on a matter such as this
which is so-dependent on the particular
circumstances of each case. Still less do they
desire to discourage the utmost candour and
fairness on the part of those conducting
prosecutions: but, at the same time they cannot,
speaking generally, approve of an idea that a
prosecution must call witnesses irrespective of
considerations of number and of reliability, or
that a prosecution ought to discharge the
functions both of prosecution and defence. If it
does so, confusion is very apt to result and never
is it more likely to result than if the prosecution
calls witnesses and then proceeds almost
automatically to discredit them by cross-
examination. Witnesses essential to the
unfolding of the narrative on which the
prosecution is based, must, of course, be called
by the prosecution, whether in the result of the
effect of their testimony is for or against the case
for the prosecution.””
Crl. APPEAL No.08/2001 Page 14 of 20
26. Instant case has no such feature as was noted in Sawal
Das’s case (supra).
27. The decision in Saeed Hakim’s case (supra) is also clearly
distinguishable as peculiar to the facts of the said case. As
noted in para 3 of the said decision, two circumstances were
highlighted by the trial court and the High Court to convict the
appellants who were the husband and the father-in-law of the
deceased. We reproduce the said two circumstances as noted
by the Supreme Court:-
“Two circumstances were highlighted to fasten the
guilt on the accused. The plea of alibi set up by A-1
having been dis-believed it must be presumed that he
was guilty. Similarly, in respect of A-2 plea of suicide
was ruled out by the evidence of doctor (PW-9). A-2
was held to be guilty. On the aforesaid ground the
trial Court convicted the present appellants and the
High Court concurred with the view of the trial Court.”
28. The Supreme Court held that it was settled law that in
a case of circumstantial evidence the Panchsheel i.e. the five
principles were well known being: (a) the circumstances from
which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned „must‟ or „should‟
and not „may be‟ established; (b) the facts so established
should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty; (c) the
Crl. APPEAL No.08/2001 Page 15 of 20
circumstances should be of a conclusive nature and tendency;
(d) they should exclude every possible hypothesis except the
one to be proved; and (e) there must be a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have
been done by the accused.
29. It was opined that applying the said five principles, it
could not be held that the twin circumstance on which
convictions were sustained by the Trial Judge and the High
Court were forming a complete chain to draw the presumption
of guilt.
30. In the instant case the following are the incriminating
circumstances against the appellant:-
(a) The room in the residential house where the deceased
was killed is the room in which the deceased went to
sleep and was killed in her sleep. She was married to
the appellant only three days prior. There is no
evidence of family custom that till a special puja was
held, the appellant could not sleep with his wife. An
inference has to be drawn that as all newly married
couples would do, the appellant slept with his wife in
the room in which she was killed.
Crl. APPEAL No.08/2001 Page 16 of 20
(b) The time of death has to be the early hours of the
morning for the reason by 8:00 AM when ASI Jagdish
Parshad reached the house on receiving information of
the death, the father of the deceased was present
whose statement Ex.PW-5/A was recorded by ASI
Jagdish Parshad. Obviously, somebody had informed
the father of the deceased of the death and there
upon he left his house and reached the house of his
daughter i.e. the matrimonial house in which the
appellant and the deceased were residing. It is
important to note that as per DW-1 when he got up at
6:00 AM he learnt that the deceased had died and that
he had himself gone to the house of the father of the
deceased to break the news. Information was not
transmitted over the telephone. Obviously, travelling
time has to be taken into account. Thus evidence
establishes that the deceased was killed prior to 6:00
AM in the morning.
(c) There is no evidence of any outsider entering the
house.
(d) The rope Ex.P-5 was got recovered by the appellant. It
has been opined to be the one with which the
deceased could be strangulated to death.
Crl. APPEAL No.08/2001 Page 17 of 20
(e) Admittedly, death is homicidal and not suicidal.
31. The recovery of the rope Ex.P-5 pursuant to the
disclosure statement of the appellant followed by his leading
the investigating officer to a corner of a room in his house and
from beneath a trunk (hidden to the eye) getting the rope
recovered and the opinion of the doctor that the ligature
marks on the neck of the deceased could be caused by the
rope coupled with the time of death of the deceased being
early hours of the morning and the room being one amongst
the various rooms in the house where the deceased slept
coupled with the fact that the marriage had lasted only three
days and the fact that the appellant was present in the house,
form a complete chain of circumstances from which an
inference of innocence can be ruled out and inference of guilt
can be inferred against the appellant. It is also important to
note that the line of defence adopted by the appellant,
evidenced by the suggestions given to the father of the
deceased, is that the deceased was unhappy with the
marriage because she was more qualified than the appellant
and for this reason she committed suicide. The appellant said
so, as an explanation for the death of his wife, when examined
under Section 313 Cr.P.C. Now, death is not suicidal. In the
absence of any evidence of dowry demand or cruelty, the only
Crl. APPEAL No.08/2001 Page 18 of 20
possible motive which emerges is the refusal by the wife to
have anything to do with the husband, infuriating the husband,
for reasons which are obvious: a denial of self by a newly
married bride to the husband. But, we need not speculate for
the reason it is not necessary to bring out motive in every
case, though in a case of circumstantial evidence, motive
assumes significance and is treated as a weighty
circumstance; failure to prove not being treated as fatal.
32. In a somewhat similar facts, in the decision reported as JT
2008 (1) SC 297 Bija & Ors. vs. State of Haryana , acquitting
the in-laws the husband of the deceased was convicted for the
offence of murdering his wife on circumstantial evidence, the
most important circumstance being of the husband being
proved to be present in the room with his wife in the
intervening night of first and second May 1998 and the dead
nd
body of his wife being found in the morning of 2 May 1998.
Notwithstanding there being other family members present in
the house, the husband was convicted for the afore-noted
reason.
33. It is apparent that where a housewife is killed in the
matrimonial house, where, apart from the husband, other
family (in-laws) members are present, the exact place and the
time of death assumes importance and has received special
Crl. APPEAL No.08/2001 Page 19 of 20
attention of the Supreme Court. Where the place happens to
be the room where the husband and wife used to sleep and
the time is either the night or the wee hours of the morning,
the needle of suspicion on the husband has been held to be no
longer a needle of suspicion, but a compass needle unerringly
pointing towards the guilt of the husband. The reason is
obvious. It is the husband and the wife who sleep together in
a room and not the other family members. Anything
happening in the night or the wee hours of the morning has to
be accounted for by the husband and his silence is akin to
owning up the guilt.
34. We find no merit in the appeal. The appeal is dismissed.
35. Since the appellant is on bail, the bail bond and surety
bond are cancelled. The appellant is directed to surrender and
suffer the sentence.
PRADEEP NANDRAJOG, J.
INDERMEET KAUR, J.
July 08, 2009
dharmender
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