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2016 DIGILAW 2577 (PNJ)

Narender v. State of Haryana

2016-09-15

LISA GILL, S.S.SARON

body2016
JUDGMENT 1. Learned counsel for the State has filed custody certificate verified by Sh. Dharambir, Deputy Superintendent, District Jail, Jhajjar, mentioning the period of imprisonment undergone by Narender (applicant/appellant No.1). The same is taken on record. 2. Heard, learned counsel for the parties. 3. Criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of Narender (applicant/ appellant No.1) during pendency of the appeal. The sentence of imprisonment of co-convicts namely Pale Ram (appellant No. 3) was suspended by this Court vide order dated 31.07.2014 and thereafter, sentence of imprisonment of Neelam Chaudhary was suspended by this Court vide order dated 28.10.2014 passed in CRM No. 14407 of 2014 in CRA-D-1389-DB of 2013. 4. Intimation by way of telephone was received at Police Station Sadar Bhiwani from Police Post General Hospital, Bhiwani on 5.5.2010 that a dead body of an unknown lady had been brought at the hospital. On this, Sub Inspector Kanta Devi along with other police officials reached the Police Post, General Hospital, Bhiwani and collected the ruqa (memo). Process for identifying the dead body was conducted. Intimation was sent to Ajay Kumar (complainant). The dead body was identified by said Ajay Kumar and Sunder son of Rajinder to be that of Roshni widow of Satbir, resident of village Bamla. The statement of Ajay Kumar (complainant) was recorded. He stated that he was Chairman of Block Samiti. His cousin brother Satbir (husband of Roshni) had died five years earlier. His wife Roshni and her two children resided with him. Narender resident of Pichopa Kalan (applicant/appellant No.1) who was a close friend of Roshni had come to village Bamla. He was a Contractor of the stadium in village Dhareru. He had brought Roshni to Dhareru on the pretext of taking her to her parental house in village Pichopa Kalan. Roshni at about 2.00 p.m. called her sister Krishna wife of Jaibir who is also the brother’s wife (‘bhabi’) of the complainant Ajay Kumar. Roshni (deceased) informed her sister Krishna that Narender (applicant/ appellant No. 1) had brought her to village Dhareru on the pretext that he would take her to the village of her family i.e. village Pichopa Kalan. Roshni further stated that Narender (applicant/ appellant No. 1) had committed indecent acts with her. Krishna then spoke to Narender (applicant/appellant No.1) and asked him to drop Roshni at village Pichopa Kalan. Roshni further stated that Narender (applicant/ appellant No. 1) had committed indecent acts with her. Krishna then spoke to Narender (applicant/appellant No.1) and asked him to drop Roshni at village Pichopa Kalan. This information was also given by Krishna to the complainant Ajay Kumar. The complainant came to know from the hospital at Bhiwani on 05.05.2010 at about 11.00 a.m. that Roshni had died due to some poisonous substance being administered. On getting this information, the complainant Ajay Kumar along with Sunder son of Rajender reached the hospital. They found the dead body of Roshni was lying on a bed. According to the complainant, they suspected that either Roshni was murdered by Narender (applicant/appellant No.1) with the help of some other person by entering into a conspiracy by administering some poisonous substance to her or she was compelled to commit suicide. He prayed for taking action against Narender (applicant/appellant No.1) and other culprits. 5. On the statement of Ajay Kumar, FIR for the offences punishable under Section 306/34 IPC was registered. Later the offence under Section 302 IPC was added. 6. According to the deposition of Dr. Deepak Mittal, MO, K.L. Jalan Hospital, Bhiwani (PW-7), the cause of death was opined to be due to Aluminium Phosphide which was detected in Ex.1a, Ex.1b and Ex.1c mentioned in FSL report (Ex.PD). In cross examination it is inter alia stated by Dr. Deepak Mittal (PW-7) that there was no mark of violence on the dead body of Roshni. There was no external or internal injury on any part of the body of the deceased. The wearing clothes of the deceased were intact. They did not refer for any DNA test. It is further stated that Aluminium Phosphide gives very pungent smell and if anybody attempts to administer Aluminium Phosphide forcibly, the possibility of injuries appearing on the lips, face, hands etc. could not be ruled out. He (PW-7) could not say whether Aluminium Phosphide would smell or not if administered in liquid form or administered in some tea etc. It is also stated as correct that when Aluminium Phosphide receives moisture it emits foul/pungent smell. 7. On the strength of the said deposition, it is contended by learned senior counsel for the applicant-appellant No. 1 that it is a clear case of suicide and it cannot at all be said that Narender (applicant/appellant No.1) had committed the murder of Roshni. 7. On the strength of the said deposition, it is contended by learned senior counsel for the applicant-appellant No. 1 that it is a clear case of suicide and it cannot at all be said that Narender (applicant/appellant No.1) had committed the murder of Roshni. Besides, the offence under Section 376 IPC, it is submitted that it cannot be said to be made out as it is the case of the prosecution itself that Narender (applicant/appellant No.1) was in relationship with Roshni (deceased). 8. In response, learned counsel for the State has submitted that the case against Narender (applicant/appellant No.1) is clearly made out and he is the main accused in the case. The learned Additional Sessions Judge, Bhiwani has held the case to be established and rightly convicted all the accused including Narender (applicant/appellant No.1). 9. After giving thoughtful consideration to the contentions of learned counsel for the parties, the question regarding the death of Roshni as to whether it was a result of homicide or suicide would require consideration at the time of final hearing of the appeal keeping in view the deposition of Dr. Deepak Mittal (PW-7) as referred to above. At this stage, it would be premature to comment on the merits of the case. 10. According to the custody certificate that has been filed, Narender (applicant/appellant No.1) has undergone actual imprisonment of 04 years, 06 months and 01 day as on 03.08.2016. With remissions, he has undergone 05 years, 02 months and 07 days of imprisonment. The appeal is not likely to mature for hearing in the near future. 11. Keeping in view the facts and circumstances of the case and the evidence on record, which would require consideration particularly as to whether it is a case of suicide or homicide, it would be just and expedient to suspend the sentence of imprisonment of Narender (applicant/appellant No. 1), during pendency of the appeal. 12. Accordingly, the criminal miscellaneous application is allowed and the sentence of imprisonment Narender (applicant/ appellant No.1) during pendency of the appeal shall remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Bhiwani.