DINESH MAHESHWARI,J. - (1.) - Preliminary This appeal by special leave is directed against the common judgement and order dated 05.03.2008 in Criminal Appeal Nos. 341-DB of 1998 and 359-DB of 1998. whereby, the High Court of Punjab and Haryana at Chandigarh has partly affirmed the judgment and order dated 09.06.1998 in Sessions Case No. 63 of 1997 by the Additional Sessions Judge, Ambala; and has upheld the conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code ('IPC') even while acquitting the co-accused persons of the charge under Section 302 read with Section 120-B IPC. 1.1. In a brief outline of the material aspects, it may be noticed that in the present case, the appellant was charged with the imputations that she killed her husband by strangulation and, with the help of co- accused persons (her brothers), hanged the dead body in one of the rooms in the house, as if it were a case of suicide. The matter rested on circumstantial evidence where, according to the prosecution, the relations of the deceased (husband) and the appellant (wife) were too strained; the deceased had stated threat perceptions that his wife might kill him, for she was involved in illicit relations and was desirous of grabbing his property. Two of the siblings of deceased, one brother and one sister, testified in support of the prosecution case. Per contra, the appellant, while denying the imputations, took the plea that she was leading a happy married life with her husband for 18-19 years with two children; and that the brother of the deceased, on whose statement FIR was registered and who was the prime prosecution witness, was carrying the ill-intentions to grab the property of her husband and had managed her prosecution. The Trial Court convicted all the accused persons while accepting the prosecution case and rejecting the defence version. In appeal, the High Court, though found that the circumstances brought on record were not sufficient to bring home the charge of conspiracy against the brothers of the appellant and acquitted them but, affirmed the findings against the appellant and maintained her conviction for the offence of murder of her husband. Hence, this appeal. The relevant facts and background aspects
(2.) Put in brief, the prosecution case had been that on 01.05.1997, having received information that a man had committed suicide in House No. 1297, Sector-15, Panchkula, ASI Amar Singh (PW-9), accompanied by UGC Bidhi Chand and UGC Baldev Singh, reached the spot at about 11.30 p.m.At what time did the police and the complainant receive this information, by which mode of communication, and through whom, are some of the questions having bearing in this matter, as shall be noticed hereafter later. , only to find that in the room on the second floor of house, the deceased Tirloki Nath, husband of the appellant, was hanging by neck with his feet touching the floor. They also found that a pool of blood had collected near the dead body; and that the dead body was emitting bad odour. The appellant and her children were in the same house, but on the first floor. 2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours after the police having arrived, the complainant Brij Bhushan Kaul (PW-7), brother of the deceased, reached the spot with his wife, mother, sister's husband and sister Smt. Radha Puri (PW-8). The complainant made the statement that relationship of the deceased and the appellant was too strained due to which, they were residing in separate rooms in the same house; that the appellant had been ill-treating her husband, which included restricting his use of bathroom facilities in the same house; that the deceased had once expressed his fear that the appellant would leave the gas cylinder open with the intention to kill him; and that the deceased had also stated that 'the character of his wife was bad' and she was living 'with bad women'. The complainant also stated that on 28.04.1997, the deceased came to his house (at Ambala Cantt.) and told him that he would go to Panchkula and would come back with his luggage as he was 'very much fed up and frightened'. The complainant further stated that in the night of 01.05.1997 at about 11.30 p.m., he received a message that his brother had passed away and thereupon, he arrived at the house of the deceased accompanied by his mother, wife, sister and brother-in-law, only to find the deceased in the condition as described hereinabove. While concluding, the complainant stated his suspicion that the appellant had murdered his brother because the deceased had not transferred his house as per her demands. 2.2. For the incident in question, FIR No. 174 dated 02.05.1997 was registered on the basis of the statement so made by the complainant. In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASI Amar Singh (PW-9); rough site sketch (Ex. PM) was prepared; photographs were taken by the photographer Shashi (PW 11); and the dead body was sent for post-mortem. Thereafter, the investigation was taken over by Inspector Jag Pravesh (PW-10), who recorded the statements of witnesses, visited the spot, got prepared the scaled site plan (Ex. PD) and also arrested the appellant. SI Ishwar Chander (PW- 12) also partly investigated this case. He arrested and released the brothers of appellant, who were on anticipatory bail. Thereafter, the appellant was charge-sheeted for the offence punishable under Section 302 IPC while her brothers were charge-sheeted for the offence punishable under Section 302 read with Section 120-B IPC. Prosecution evidence
(3.) After committal, the case was tried as Sessions Case No. 63 of 1997 in the Court of Additional Sessions Judge, Ambala. The prosecution, inter alia, examined 12 witnesses. Having regard to the subject matter of this appeal and the questions involved, it would be advantageous to take note of the relevant aspects emerging from the statements of material witnesses in requisite details, even at the cost of a little inflation. 3.1. PW-1 Dr. Usha Bansal, who had been one of the members of the medical board that had conducted post-mortem of the body of deceased and had prepared the report Ex. PA, stated the observations and opinion as follows: "... A well defined depressed ligature mark measuring 3 cm. wide seen encircling the neck around the thyroid cartilage with a knot present on left side of neck. This ligature mark was ante-mortem in nature. A ligature mark above the thyroid cartilage going obliquely upward and posteriorly on left side present with an irregular impression of knot on left side of the neck measuring 1.5 cm wide present. This ligature mark was of post-mortem nature.... xxx xxx xxx In our opinion, the cause of death was asphyxia due to strangulation...The probable time that elapsed between injury and death was few minutes and between death and post-mortem was 24 hours to 72 hours....." 3.2. PW-7 Brij Bhushan Kaul (brother of the deceased) has been the prime witness of prosecution in this case. The relevant assertions occurring in his examination-in-chief read as under: - ".....Upto Dec., 1997 I remained at Ambala Cantt. Tirloki Nath used to visit Ambala Cantt and was always found by us to be disturbed, because of the family problem. Tirloki Nath told us that he was shifted to a separate room at the top floor of the house and that he was not provided any article of food and was being mal-treated by his wife Smt. Gargi Devi. He also told many a time that he was never allowed to enter the room and toilet by his wife at night times. Tirloki Nath deceased left our house at Ambala Cantt lastly on 28.4.1997, around 7.45 AM and while leaving, told that it was his last time to go to Panchkula to collect his belongings and then would be coming to Ambala Cantt for ever. On this, I asked him as to why he was taking this step. He told me that he was very much upset due to the illicit relations of his wife Smt. Gargi Devi and was afraid of that if he stayed in the same house at Panchkula, he could be murdered, with the help of her three brothers...On this I told him that it was not possible because a wife cannot kill her husband. However, while leaving our house, he was totally shattered. Tirloki Nath used to take tea only in his room at the top floor of the house, using his independent cylinder in his room. He was not provided even tea by Smt. Gargi and the children. He told me that once his wife had opened the gas cylinder in order to kill him.....I was on tour on 1.5.97. I came back to my house at Ambala late in the night at about 11.30 PM. Immediately thereafter, I got a message from my neighbour, namely Mr. T.R. Malhotra giving me the message that his (sic) brother Tirloki Nath at Panchkula was no more, as he received this information from some colleague of my brother. (Objected to). My brother was murdered. At that time, it was not clear by whom. Thereafter, I gave telephonic messages to my relatives regarding the murder of my brother. So, I alongwith my brother-in-law Mr. A.C. Puri, my sister Smt. Radha Puri, my mother Smt. Raj Kumari, my wife Meenakshi went to Panchkula. On our reaching at Panchkula, we found two ASIs sitting outside the house of Smt. Gargi. On my enquiry, as to what had happened to my brother, I was told that I should go up-stairs and found out myself. We all went up-stairs and found the dead body of Tirloki Nath hanging with a fan. The feet of my brother were touching the floor. Blood was noticed on the floor. The body was giving bad odour. I reported the matter to the police vide statement Ex. PH. It was signed by me........" 3.2.1. This witness PW-7, in his cross-examination on behalf of the appellant, stated, inter alia, as under: - "It is correct that I was 1 1/2 years old when my father died. Tirloki Nath was the eldest son of the second marriage of my mother......There are two brothers and two sisters from the second marriage of my mother. My father died as told, due to cancer at Delhi, in the year 1961. It is incorrect to suggest that Tirloki Nath deceased had brought up all the children of my mother from both the marriages. ....He bore expenses for some time regarding my education etc. The marriage of my brother Tirloki Nath was performed about 19-20 years ago.....My mother is having no source of income except the family pension due to my father's death and some rental income. My mother had given on rent a house situated in Adarsh Nagar, Ambala Cantt. I joined Navy in the year 1978. I was married in the year 1984. It is incorrect to suggest that all the expenses of my joining the service and on my marriage were borne by my brother Tirloki Nath. Since I was attached to my mother very well, I left my Navy job. Tirloki Nath after his marriage with Smt. Gargi probably in the year 1978, left my mother alone and started living separately and so this was the main reason that I left my Navy job in the year 1980. It is wrong to suggest that I was involved in some case in the Navy and the police was after me and I absconded and left my job. After leaving Navy, I joined Forbes Forbes, Camp Bell and Co. Ltd. at Jammu in the year 1981 or 1982 as Sales Executive...... I never took my mother to Jammu because I started my business at Karnal and opened a kiryana shop. It is wrong to suggest that I committed a fraud at Jammu and my services were terminated and thereafter I started a kiryana shop at Karnal. It is correct that the house in Adarsh Nagar, Ambala Cantt was sold and the proceeds of that house were utilised by me in opening a kiryana shop at Karnal. My mother started living with me at Karnal. It may be that the house was sold in the year 1980 and the sale proceeds were utilised by opening a kiryana shop, which was closed by me, because I did not like that business. After winding up my kiryana shop, I came to Ambala Cantt and settled with my mother. It is wrong to suggest that I misutilised the amount and so was having no option except to close the business and come back to Ambala Cantt.......I have been serving as Manager in hotels, namely Hide Out Tourist Complex, Palwal and Standard Hotel, Ambala Cantt.... I was working with Camlin Ltd. Bombay but was posted at Ludhiana as Sales Promotion Organizer (North) for a period of about 3 1/2 years. It is wrong to suggest that I committed a fraud at Ludhiana and my services were terminated accordingly. It is incorrect to suggest that I have been getting different Jobs with the efforts of Tirloki Nath deceased alone. I joined Veeto Hobbies Ambala for some time as Manager Marketing. It is wrong to suggest that I also committed a fraud and so my services were terminated.....I started my factory at Ambala Cantt. That factory was closed after two years......It is correct that I obtained bank loan for running my factory but not due to the efforts of Tirloki Nath. There was no surety. It is incorrect to suggest that I pressurized Smt. Gargi to stand as a guarantee against bank loan, and on the refusal of Smt. Gargi, my brother Tirloki Nath stood as a guarantee. I have made payment of loan more than half the amount taken by me..... .....It is incorrect to suggest that one Mr. Narang had filed civil suit against me and the company and which case was won by me. It is incorrect to suggest that Mr. Tirloki Nath had made payment to Mr. Narang and got the matter settled. Tirloki Nath might have come ten days, fifteen days prior to 28.4.1997, as he was constructing a house at Ambala Cantt. He used to complain against the behaviour of his wife. It is incorrect to suggest that the house was not being got constructed at Ambala Cantt by Tirloki Nath for himself but was being constructed for the residence of the mother ...." 3.2.2. In his further cross-examination on behalf of the appellant, this witness stated as under: - ".......There was only one ancestral house at Model Town, Ambala City (Adarsh Nagar). There is no other immoveable (ancestral) property........I do not know for how many days Tirloki Nath used to remain on tour in a month. It is correct that he was going on tour oftenly..... On 28.4.97, I went on tour after meeting my brother...I did not give any telephonic call to him in the night time of 28.4.97 or even in the day time as to why he had not reached Ambala Cantt with his luggage, as told by him....I never enquired either on 29.4.97 or thereafter from Tirloki Nath for his not coming to Ambala Cantt with luggage......We talked to the Police officials for about 15 minutes in order to know the facts of the case. Thereafter we went up-stairs, and started weeping and crying. 2/3 ladies two brothers of Smt. Gargi, one uncle of Smt. Gargi, and aged person were present at the time, when we reached. The children of Gargi were also present there at the first floor. No person was sitting with the dead body of Tirloki Nath at the time we had gone there- (volunteered). In the morning time about 25 persons from the neighbourhood had also come there, after my statement was recorded by the ASI......I do not know whether the tenants on the ground floor came in the year 1990 and litigation with them started in the year 1991....I do not know whether the house at Panchkula was constructed with the joint income of Tirloki Nath and Smt. Gargi....It is incorrect to suggest that I was after Tirloki Nath to get money even after pledging the house. It is incorrect that there was any pledging of the house in question and there was any opposition from Smt. Gargi in this regard....It is incorrect to suggest that in order to grab the house, I have falsely named the accused in this case...".There had been further cross-examination of this witness PW-7 on behalf of the other accused persons where he was, inter alia, confronted with his police statements which did not carry some of the assertions made in the Court. However, all the major aspects of his testimony having occurred in the extraction hereinabove, the other parts of his testimony in further cross-examination are not being extracted. 3.3. PW-8 Radha Puri (sister of the deceased) purportedly corroborated the testimony of PW-7. The relevant parts of her assertions in the examination-in-chief could also be usefully extracted as under:- ".....Tirloki Nath had come to Yamuna Nagar on 25.1.1997 and met us. He was very much disturbed and upset at the time. He told me that there used to remain tense situation at every time in the house because Smt. Gargi wanted that the house at Panchkula should be got mutated in the name of Smt. Gargi. He further was told that he was afraid of Smt. Gargi and her brothers and he apprehended danger to his life....He stated that he was residing in a room at the top floor of the house and was getting meals from the Hotel. Tirloki Nath had stated that 2/3 times, he was attacked by Smt. Gargi and the children and that he had saved himself some-how or other. Tirloki Nath stated that Smt. Gargi was having illicit relations and she never told where she used to go. He stated that on an enquiry from Smt. Gargi, she always replied that he was having no concern to ask such questions. According to Tirloki Nath, he was not allowed even to use bath-room facility. He was using bath-room of the tenants on the ground- floor. However, we pacified him. We were never allowed to visit our brother Tirloki Nath at Panchkula by Smt. Gargi. On 1.5.97, I came to know through my brother Brij Bhushan that Tirloki Nath had committed suicide. He told that as per the information, the neighbourers at Panchkula told that Tirloki Nath had committed suicide. So, I alongwith others reached Panchkula, and saw Smt. Gargi, her brothers and sisters enjoying tea at the second floor of the house. I thought that my brother had gone to Hospital and was saved and that was the reason that they were enjoying the tea. Thereafter, the police came and we went up-stairs, where the dead body of Tirloki Nath was found hanging with a ceiling fan..... I suspect that Smt. Gargi alongwith her brothers had murdered my brother Tirloki Nath." 3.3.1. In her cross-examination on behalf of the appellant, this witness PW-8 Radha Puri stated, inter alia, as under: - "On 1.5.97, at night time about 11 PM, I was sleeping and my husband awoke me and told after hearing the telephone that Tirloki Nath was no more in the world and started weeping..... I myself, my husband, my brother Brij Bhushan, and his wife and my mother then went to Panchkula during night time.....Some police officials were sitting at the entrance of the gate of the house. ....Firstly we went to first floor, where we saw Gargi, her brothers, children and relatives to whom I do not know. There was no person from the mohalla, where the policemen were sitting. .....I do not know whether house No. 1297, Sector 15, Panchkula was built out of the joint income of Smt. Gargi and her husband Tirloki Nath. I do not know whether Gargi had taken any amount by way of advance from the Govt. or not. ..........I do not know whether Smt. Gargi and her husband were having cordial relations or not in the year 1994, when I visited her because I stayed there for a night and did not talk much, as the friend of Smt. Gargi and her children alongwith her husband had come there. I do not remember the names or antecedents of those persons. On 25.1.1997 when my brother Tirloki Nath had come to Yamuna Nagar, I found him very much disturbed and he talked to me regarding the behaviour of Smt. Gargi. I was alone. I narrated the facts to my husband in between the period from 25.1.97 to 1.5.97. I did not tell the aforesaid facts to any one else. It is incorrect to suggest that Brij Bhushan my brother was helped in his education, service and in his up-bringing by Tirloki Nath deceased. It is correct that the ancestral house was sold by my brother Brij Bhushan. However, it is wrong to suggest that he misappropriated the sale proceeds of the house. I do not know when the house was sold. I do not know whether Tirloki Nath was having any plot in Ambala Cantt or not. Again said, the plot at Ambala Cantt is in the name of my mother. Again said, I cannot say exactly in whose name it is...It is correct that I did not make any verification from any quarter regarding illicit relations of Smt. Gargi, as told by my brother Tirloki Nath. I believed my brother what Tirloki Nath stated to me regarding the ill-treatment meted to him from Smt. Gargi. This was also told by my mother. My brother had told all about this to all the family members (sic).....I enquired from Vaishali daughter of Tirloki Nath as to how Tirloki Nath had died. She did not tell even a word, though I was crying throughout. Vaishali told me as to why we had come there because we were not called there........"There had been further cross-examination of this witness also on behalf of the other accused persons where she was, inter alia, confronted with her police statements which did not carry several of the assertions made in the Court. However, all the major aspects of her 3.4. ASI Amar Singh led in evidence as PW-9. He had arrived at the spot after having received the information about the death of Tirloki Nath. As regards the mode and time of receiving information, this witness stated that "a telephonic message was received that one person in House No. 1297, Sector 15, Panchkula had committed suicide. This information was received at 11.15 PM." In his cross- examination, PW-9 stated, inter alia, as follows:- "...Smt. Gargi and her children were on the first floor of the house, whereas the dead body was on the top floor of the house. I did not record the statement of Smt. Gargi and her children. I have been making formal investigation before the arrival of complainant etc. I have not kept any record qua the formal investigation. The neighbourers did not come to the spot, though they were found by me standing in the street. I did not call any one. I have been giving information to the officers on telephone......I did not join any independent witness from the locality..." (underlining supplied) 3.5. Inspector Jag Parvesh, who carried out major part of investigation, was examined as PW-10 and stated in his examination- in-chief that he reached the hospital on 02.05.1997 where he was handed over the statement EX.PH as made by PW-7; the inquest report Ex.PH/2 prepared by PW-9; and the post-mortem report EX.PA. He drew up the necessary proceedings; recorded statements under Section 161 of the Code of Criminal Procedure Code ('CrPC'); testimony having occurred in the extraction hereinabove, the other parts of her testimony in further cross-examination are not being extracted. collected blood from the spot; and arrested the appellant. In his cross- examination, this Investigating Officer stated, inter alia, as under: - ".......I made verification from the locality regarding the character of Smt. Gargi but did not record any statement. I do not remember the names of those persons. I verified from 5/10 persons of mohalla. I did not mention this factum in the report u/s 173 Cr.PC. Report was prepared by the then SHO. ...I interrogated Gargi accused while in custody. She had told that she was innocent and had not committed any offence...Gargi accused had told me that she was not having any dispute with her husband and was having cordial relations. I joined the children of Gargi accused in my investigation. I have not recorded their statements and as such, no record is there. The interrogation of Gargi was recorded in the zimini. I did not take finger prints from the rope. I had not at all taken finger prints from any other place where the dead body of Tirloki Nath was found. However, Finger Print Expert visited the place. None has told me that Brij Bhushan complainant used to harass Gargi and Tirloki Nath to extract money from them. It is correct that the stairs in the house are outside the door. If the door is closed, none can notice who is coming down and who is coming up. I investigated regarding the visitors in the house during the 3/4 days prior to the 2.5.97 and I had come across one Pandit who visited that house during this period. Smt. Gargi told that one Pandit was brought for performing Havan. I made verbal enquiries from the neighbourhood. ...... ......I had recorded statements of other witnesses i.e. mother, sister and brother-in-law of deceased in the hospital. ...There is a direct stair case from the ground floor to the top floor of the house of Gargi and one can go upstairs and come down stairs without entering any room on the first floor....." (underlining supplied) 3.6. PW-2 H.S. Narula, the Deputy Manager, Oriental Insurance Company, Sector 22, Chandigarh was examined by the prosecution to testify that the deceased was working in his Company as Assistant Administrative Officer, who lastly attended the Office on 28.04.1997. In his cross-examination, this witness admitted the fact that deceased Tirloki Nath used to remain on tour for about two weeks in a month. 3.7. PW-3 Manohar Lal, who was working as a constable in S.P. Office, Ambala drew up the site plan Ex. PD of the place where the body of deceased was found. In his evidence, PW-3 pointed that there was a bathroom-cum-toilet, attached with the room on the second floor. The site plan of second floor (Ex. PD) shows about 10 feet x 3 feet space marked as bath/toilet. 3.8. PW-4 Sant Lal Gupta, the then Assistant Audit Officer, AG Audit, Punjab, Chandigarh testified to fact that the appellant was working as Senior Auditor in his office; that she was on casual leave on 28.04.1997 and 29.04.1997; and that she attended the office on 30.04.1997 and 01.05.1997. In his cross-examination, this witness expressed want of knowledge if the appellant often used to come to the office with her husband and used to leave after office hours with her husband. This witness also stated that 'no complaint was received from the side of husband of Smt. Gargi or any other relation of husband of Smt. Gargi against Smt. Gargi'. 3.9. The other witnesses examined by the prosecution had been PW- 5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-11 Shashi, who took the photographs at the site; and PW-12 SI Ishwar Chander, who also partly investigated the case. ;