{"id":43926,"date":"2008-01-10T00:00:00","date_gmt":"2008-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bija-ors-vs-state-of-haryana-on-10-january-2008"},"modified":"2015-05-04T01:17:06","modified_gmt":"2015-05-03T19:47:06","slug":"bija-ors-vs-state-of-haryana-on-10-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bija-ors-vs-state-of-haryana-on-10-january-2008","title":{"rendered":"Bija & Ors vs State Of Haryana on 10 January, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bija & Ors vs State Of Haryana on 10 January, 2008<\/div>\n
Author: C Thakker<\/div>\n
Bench: C.K. Thakker, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (crl.)  344 of 2007\n\nPETITIONER:\nBIJA & ORS.\n\nRESPONDENT:\nSTATE OF HARYANA\n\nDATE OF JUDGMENT: 10\/01\/2008\n\nBENCH:\nC.K. THAKKER & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
C.K. THAKKER, J.\n<\/p>\n
1.\t\tThe present appeal is directed against
\nthe judgment and order of conviction and
\nsentence recorded by the Additional Sessions
\nJudge-I, Kaithal dated May 17, 2001 in Sessions
\nTrial No. 52 of 1999 and confirmed by the High
\nCourt of Punjab & Haryana on July 6, 2006 in
\nCriminal Appeal No. 435-DB of 2003. By the
\naforesaid orders, all the appellants were
\nconvicted for an offence punishable under
\nSection 302 read with Section 34 of the Indian
\nPenal Code (IPC) and ordered to undergo
\nrigorous imprisonment for life and to pay fine
\nof Rs.2000\/- by each of them. Default sentence
\nwas also ordered.\n<\/p>\n
2.\t\tThe case of the prosecution was that
\nSmt. Santro (deceased) was the daughter of PW2-
\nLakhmi Chand. Lakhmi Chand was having another
\ndaughter named Shero. Both the sisters
\n(daughters of Lakhmi Chand) were married to two
\nsons of Bijaaccused No.1. Whereas deceased
\nSantro married to accused No.2Raghbir Singh,
\nShero (sister of deceased Santro) married to
\nSubhash Singh, another son of Bija-accused No.1
\nand brother of Raghbir Singh-accused No.2.
\nAccording to the prosecution, though the
\nmarriage of both the sisters was solemnized in
\n1988, deceased Santro was unhappy at her
\nmatrimonial home. It was alleged that accused
\nRaghbir Singh-husband of Santro was not happy
\nwith his wife. Santro was not beautiful, she
\nhad not brought sufficient dowry with her and
\nalso that she could not conceive and bear a
\nchild in spite of the fact that substantial
\nperiod of about 7-8 years after marriage had
\nelapsed. In view of the above facts, accused
\nRaghbir singh became almost indifferent to
\nSantro and nearly abandoned her. The Panchayat
\nwas informed and several meetings were held and
\nultimately, due to intervention of the
\nPanchayat, after about ten years of the
\nmarriage and 5-6 months prior to the incident
\nwhich took place in May, 1998, Santro again got
\nmarried to Jagdish-accused No.3 (younger
\nbrother of Raghbir Singh) who was bachelor at
\nthe relevant time, by exchanging garlands
\n(Jaimala). It was the case of the prosecution
\nthat the accused were not in favour of the
\nsecond marriage of Santro with Jagdish, but
\nthey had to agree and the marriage was
\nperformed due to intervention and pressure by
\nthe Panchayat. That was said to be the motive
\non the part of the accused for causing death of
\ndeceased Santro.\n<\/p>\n
3.\t\tAccording to the prosecution version,
\nin the night intervening May 1st & 2nd, 1998,
\nSantro died in the house of her in-laws. The
\nallegation was that, all the four accused,
\nnamely, Jagdish-husband of Santro, Raghbir
\nSingh-former husband of Santro, Bija and Sona
\nDevi  father-in-law and mother-in-law
\nrespectively of Santro caused her death by
\nclosing her mouth and nose and by smothering
\nher.\n<\/p>\n
4.\t\tAccording to PW2-Lakhmi Chand (father
\nof deceased Santro), he was at his agricultural
\nfield in the night of May 1, 1998. There he
\nreceived a message that his daughter was killed
\nby all the four accused persons. He immediately
\nwent to his house from the field and
\naccompanied by PW3-Sher Singh (Sarpanch of the
\nvillage) and PW4-Ganga Singh (brother-in-law of
\nPW2 Lakhmi Chand and maternal uncle of deceased
\nSantro) went to the house of the accused and
\nfound dead body of his daughter Santro lying
\nnear the door of the room. An electric wire was
\nhanging over the dead body of his daughter.
\nPW2-Lakhmi Chand along with Sher Singh, Ganga
\nSingh and others, then went to the Police
\nStation, Rajound and lodged First Information
\nReport (FIR) with the police. After usual
\ninvestigation, charge sheet was submitted. It
\nappears that initially the case was registered
\nagainst the accused for offences punishable
\nunder Sections 498A, 304B read with Section 34,
\nIPC. But, since the Court was satisfied that
\nprima facie there was sufficient material to
\nframe charge against the accused for an offence
\npunishable under Section 302 read with Section
\n34, IPC, the charge was amended and all the
\nfour accused were also charged for an offence
\npunishable under Section 302 read with Section
\n34, IPC in addition to offences punishable
\nunder Sections 498A and 304B read with Section
\n34, IPC.\n<\/p>\n
5.\t\tThe prosecution, in order to prove
\nguilt of the accused, examined as many as 12
\nwitnesses including PW2-Lakhmi Chand (father of
\ndeceased), PW3-Sher Singh (Sarpanch of the
\nvillage) and PW4-Ganga Singh (maternal uncle of
\ndeceased Santro). It was stated in the FIR that
\ndeceased Santro was killed by all the accused
\nin furtherance of common intention by giving
\nelectric current to her, as electric wire was
\nlying near the dead body of Santro, but during
\nthe course of investigation, it was found that
\nthere was no electric connection in the house
\nof the accused and medical evidence also
\nrevealed that death of deceased Santro was
\ncaused due to asphyxia by smothering and
\naccordingly, the case was considered on that
\nbasis.\n<\/p>\n
6.\t\tAfter appreciating the evidence on
\nrecord, the trial Court came to the conclusion
\nthat it was clearly established by the
\nprosecution, particularly from the evidence of
\nPW2-Lakhmi Chand (father of deceased Santro)
\nand PW4-Ganga Singh (maternal uncle of deceased
\nSantro) that the deceased was not happy at the
\nmatrimonial home. Several circumstances were
\nresponsible which made accused unhappy with
\nSantro and her life miserable. They were, inter
\nalia, narrated by the prosecution witnesses, as
\nSantro not being very beautiful, she did not
\nbring sufficient amount of dowry with her and
\ncould not give birth to a child. It has also
\ncome in evidence that attitude of accused
\nRaghbir Singh-former husband of deceased
\nSantro, was totally indifferent and he had
\nalmost abandoned her. Several complaints were
\nmade to the Panchayat and the Panchayat
\ninsisted that the family of the accused must do
\nsomething to do justice to Santro as there was
\nno fault on the part of deceased Santro for
\nwhich she was not treated properly. At the
\nintervention of the Panchayat in October, 1997,
\ntherefore, the family of the accused had to
\nagree to marry one of his sons (accused
\nJagdish) with deceased Santro by Karewa
\nmarriage. It is clear from the prosecution
\nevidence that none of the family members of the
\naccused liked the marriage of Santro with
\nJagdish-younger brother of Raghbir Singh-former
\nhusband of Santro. Once again Santro could not
\nconceive and accused Jagdish and other family
\nmembers of the accused got disturbed. From the
\nprosecution evidence, it is clear that in the
\nintervening night between May 1 and 2, 1998,
\nall the family members except deceased Santro
\nwere sleeping on the roof of the house of the
\naccused and Santro alone was in her room at the
\nground floor. According to the prosecution,
\nwhen the family members of the accused came in
\nthe morning of May 2, 1998, Santro was found
\ndead in her room. Since no outsider was present
\nin the house and as the accused persons were
\nunhappy with Santro and they had motive and
\nreason to kill Santro, all of them jointly
\ncommitted the murder of Santro. Then with a
\nview to mislead the investigating agency, they
\nhad put an electric wire near the dead body of
\nSantro. From the evidence of PW10-Inspector
\nGulzar Singh, however, it was proved that there
\nwas no electric connection in the house of the
\naccused and the possibility of death of Santro
\nby electrocution was thus ruled out. The case
\nwas also put forward by the defence under
\nSection 313 of the Code of Criminal Procedure,
\n1973 as also by examining DW1Shero-real sister
\nof deceased and wife of Subhash Singh-brother
\nof accused Raghbir Singh and Jagdish that
\ndeceased Santro was suffering from Epilepsy and
\nshe died due to that ailment. But from the
\nevidence of PW9-Dr. B.B. Kakkar, it was clearly
\nestablished that the cause of death was neither
\nelectrocution nor Epilepsy but asphyxia due to
\nsmothering.\n<\/p>\n
7.\t\tThe trial Court held that both the
\nsistersShero and Santro got married to two
\nbrothers on one and the same day. Both the
\nsisters were then sent to matrimonial home. It
\nwas, therefore, not possible to believe that
\nthere was dowry demand from one sister i.e.
\ndeceased, and not from the other sister i.e.
\nShero. Again, no sufficient evidence was led by
\nthe prosecution to prove demand of dowry and
\ndeath of deceased Santro on that account.
\nAccordingly, the trial Court acquitted all the
\naccused for offences punishable under Sections
\n498A and 304B read with Section 34, IPC. But
\nthe trial Court was satisfied that all the
\naccused killed Santro in furtherance of common
\nintention and accordingly, it convicted them
\nfor an offence punishable under Section 302
\nread with Section 34, IPC.\n<\/p>\n
8.\t\tThe High Court again considered the
\nevidence on record and submissions made by the
\nparties and held that the trial Court did not
\ncommit any error of fact or of law in
\nconvicting the accused for an offence
\npunishable under Section 302 read with Section
\n34, IPC and dismissed the appeal.\n<\/p>\n
9.\t\tOn January 12, 2007, notice was issued
\nby this Court on Special Leave Petition as well
\nas on bail application. On March 12, 2007,
\nleave was granted and hearing of the appeal was
\nexpedited. On May 16, 2007, accused Nos. 1, 2 &
\n4 (parent-in-laws and former husband of the
\ndeceased) were enlarged on bail but the bail
\napplication of Jagdish (husband of Santro) was
\nrejected. The matter is now placed before us
\nfor final hearing.\n<\/p>\n
10.\t\tWe have heard learned counsel for the
\nparties.\n<\/p>\n
11.\t\tThe learned counsel for appellants
\ncontended that both the Courts committed grave
\nerror in convicting the appellants. It was
\nsubmitted that when no case was proved by the
\nprosecution against them for offences
\npunishable under Sections 304B and 498A read
\nwith Section 34, IPC, they ought to have been
\ngranted benefit of doubt and could not have
\nbeen convicted under Section 302 read with
\nSection 34, IPC. Once it was held that it could
\nnot be said that death of Santro was caused due
\nto demand of dowry, there was no other reason
\nto kill her. It was also submitted that there
\nwas sufficient evidence on record in the form
\nof substantive evidence of DW1-Shero (real
\nsister of Santro) that the deceased was
\nsuffering from Epilepsy and the said ailment
\nwas responsible for her death and the
\nappellants cannot be convicted for any offence.
\nIt was urged that finding of dead body from the
\nhouse of the accused does not necessarily
\nconnect the appellants with the crime in
\nquestion. Finally, it was submitted that there
\nwas no evidence to invoke Section 34, IPC as
\nthere was no common intention on the part of
\nthe accused in committing the crime and both
\nthe Courts were in error in invoking the said
\nprovision. On all these grounds, it was
\nsubmitted that both the orders are liable to be
\nset aside.\n<\/p>\n
12.\t\tThe learned Government Pleader, on the
\nother hand, supported the order of conviction
\nrecorded by the trial Court and confirmed by
\nthe High Court. According to him, the case was
\nof circumstantial evidence and the chain of
\ncircumstances was full, complete and unbroken.
\nFrom the evidence of prosecution witnesses,
\nPW2-Lakhmi Chand, PW3-Sher Singh and PW4-Ganga
\nSingh, it was clearly established that there
\nwas motive on the part of the accused to kill
\ndeceased Santro. It has come on record that
\nSantro was not beautiful, she did not bring
\nsufficient dowry and finally she could not bear
\na child. It has also come on record that a
\ncomplaint was made to village Panchayat and
\nseveral meetings were held. The Panchayat
\nintervened and finally the deceased Santro had
\nto be accommodated in the family and accused
\nJagdish was compelled to  marry her by a karewa
\nmarriage exchanging garlands. But the said act
\nwas not approved by any of the accused persons
\nand had to agree to the marriage due to
\nintervention by the Panchayat which was the
\nroot cause of trouble. This is also clear from
\nthe fact that during the night time of May 1 &
\n2, 1998, she was all alone in the house at the
\nground floor and all the accused persons were
\non the roof. According to the learned
\nGovernment Advocate, taking advantage of the
\nsituation, all the accused killed the deceased
\nby pressing her nose and mouth. The death due
\nto asphyxia by smothering was clearly
\nestablished by medical evidence on record. The
\ncounsel also submitted that the conduct of the
\nappellants also went a long way in proving mens
\nrea and the case against them. Though there was
\nno electric connection, electric wire was put
\nnear the dead body of deceased Santro to give
\nan impression to police that death was caused
\ndue to electrocution. It was because of the
\ninvestigating officers efforts that the
\nfalsehood had come to light and it was
\nestablished that there was no electric
\nconnection and death was not due to
\nelectrocution but due to asphyxia by
\nsmothering. Regarding evidence of Shero-sister
\nof deceased, it was submitted that though she
\nwas sister of deceased Santro, she was married
\nto real brother of Raghbir Singh and Jagdish
\nand son of Bija and Sona Devi. Shero was
\nstaying with her husband. Obviously, in the
\ncircumstances, she was expected to support the
\ndefence. Her evidence was, hence, rightly
\ndiscarded by both the Courts. Since all the
\nappellants had common intention to kill
\ndeceased Santro, the Courts below were right in
\nordering conviction of all of them under
\nSection 302 read with Section 34, IPC and no
\ninterference is called for. The appeal,
\ntherefore, deserves to be dismissed.\n<\/p>\n
13.\t\tHaving heard learned counsel for the
\nparties, in our opinion, the appeal deserves to
\nbe partly allowed. From the evidence of
\nprosecution witnesses and the findings recorded
\nby both the Courts in the light of evidence of
\nPW9-Dr. Kakkar, it was proved beyond reasonable
\ndoubt that the cause of death of Santro was
\nasphyxia due to smothering. An impression was
\nsought to be created by the accused that cause
\nof death was electrocution but from the
\nevidence of PW10-Inspector Gulzar Singh, the
\npossibility was ruled out. It was also
\nestablished from medical evidence that the
\ndeath was not due to ailment of Epilepsy. Both
\nthe Courts, in our opinion, therefore, were
\nright in coming to the conclusion that death of
\nSantro was homicidal in nature and the cause of
\ndeath was Asphyxia due to smothering.\n<\/p>\n
14.\t\tThe Courts below were right in not
\nrelying upon the deposition of DW1-Shero and in
\nobserving that she was under pressure as she
\nwas staying at matrimonial home and with a view
\nto protect her, she deposed in favour of her
\nin-laws as she wanted to save them. In our
\nopinion, it could not be said that by drawing
\nsuch inference, the trial Court or the High
\nCourt had committed any error. This is coupled
\nwith the fact that a show was made by the
\naccused persons to mislead the police and
\ninvestigating agency by placing electric wire
\nnear the dead body of deceased Santro and also
\nputting forward a ground of death as ailment of
\nEpilepsy, ruled out by medical evidence.\n<\/p>\n
15.\t\tThere was motive on the part of the
\naccused in doing away with Santro. Though both
\nthe Courts had not believed the case of demand
\nof dowry and cruelty towards deceased Santro
\nfor non-payment of sufficient dowry by the
\nparents of deceased Santro in view of the
\ncircumstance that another sister Shero married
\nto one of the brothers of Raghbir Singh had not
\nstated anything as to demand of dowry by the
\naccused persons and she was living at the
\nmatrimonial home peacefully, it has come on
\nrecord that Santro was not good-looking lady.
\nMoreover, though her marriage was performed
\nwith Raghbir Singh in 1988 along with Shero,
\nfor about 10 years i.e. upto 1997, she could
\nnot conceive and could not bear a child.
\nRaghbir Singh was totally indifferent and
\nabandoned her. So much so that complaints were
\nmade by PW2-Lakhmi Chand (father of deceased
\nSantro) to Panchayat and Panchayat had to
\nintervene. In 1997, finally, the Panchayat
\npractically forced the family members of the
\naccused to accept Santro and keep her in their
\nfamily and it was because of the compulsion and
\npressure of Panchayat that accused had to agree
\nto marriage between Jagdish and Santro. Thus,
\nthere was every reason for the accused to be
\nunhappy with deceased Santro. This is further
\nclear from the fact that on the intervening
\nnight of 1st and 2nd May, 1998, she was alone in
\nher room on the ground floor and the dead body
\nof deceased Santro was found in the morning of
\nMay 2, 1998 from the house of the accused.\n<\/p>\n
16.\t\tBut, there is no evidence that parents
\nof the accused No.3-Jagdish i.e. accused Nos. 1
\n& 4 and former husband of the deceased-accused
\nNo.2-Raghbir Singh had common intention to kill
\ndeceased Santro and they were parties in
\nkilling the deceased. It is no doubt true that
\nJagdish, who was the present husband, had
\ngrievance against Santro. He had to marry
\nSantro who was neither beautiful nor able to
\nbear child. The marriage was subsisting. After
\nSantro married to Jagdish in 1997, he was
\nunhappy as she could not conceive. Presumably
\nbecause of that, he was also indifferent
\ntowards her and in the intervening night of May
\n1 & 2, 1998, he was not along with her in the
\ncompany of his wife in the room where she was
\nsleeping but was on the roof along with other
\nfamily members. But, in view of the fact that
\naccused Nos. 1, 2 & 4 could not be said to be
\ndirectly connected with the death of Santro, in
\nabsence of clear evidence to that effect, the
\nCourts below could not have convicted them by
\ninvoking Section 34, IPC. So-called extra
\njudicial confession by Smt. Sona Devi, accused
\nNo.4 before Gaje Singh and Amar Singh has not
\nbeen proved. Direct, immediate and proximate
\ngrievance at the relevant time was for accused
\nJagdish. Hence, his conviction for an offence
\npunishable under Section 302, IPC recorded by
\nthe trial Court and confirmed by the High Court
\ncannot be said to be contrary to law or
\notherwise unlawful. But there was no sufficient
\nevidence as to common intention on the part of
\nthe other accused in absence of requisite
\nmaterial on record. In our considered opinion,
\ntherefore, Section 34, IPC could not have been
\ninvoked by the Courts below. To that extent,
\ntherefore, both the judgments deserve to be set
\naside.\n<\/p>\n
17.\t\tFor the foregoing reasons, the appeal
\ndeserves to be partly allowed as indicated
\nabove and is so allowed. The judgment and order
\nof conviction and sentence recorded against
\naccused No.3-Jagdish (husband of deceased
\nSantro) for an offence punishable under Section
\n302, IPC is confirmed. Conviction and sentence
\nof accused Nos. 1-Bija, father-in-law, accused
\nNo.4-Sona Devi, mother-in-law and accused No.2-
\nRaghbir Singh-former husband of deceased Santro
\nby the aid of Section 34, IPC is set aside and
\nthey are ordered to be acquitted.\n<\/p>\n
18.\t\tOrdered accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bija & Ors vs State Of Haryana on 10 January, 2008 Author: C Thakker Bench: C.K. Thakker, D.K. Jain CASE NO.: Appeal (crl.) 344 of 2007 PETITIONER: BIJA & ORS. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT: 10\/01\/2008 BENCH: C.K. THAKKER & D.K. JAIN JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-43926","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBija & Ors vs State Of Haryana on 10 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bija-ors-vs-state-of-haryana-on-10-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bija & Ors vs State Of Haryana on 10 January, 2008 - 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