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2023 DIGILAW 688 (JK)

Ravi Puri v. State of Jammu And Kashmir

2023-11-07

SANJAY DHAR

body2023
JUDGMENT : 1. By this common judgment, Criminal Appeal bearing No. 25/2004 filed by the appellant, challenging judgment of conviction dated 28.09.2004 and order of sentence dated 29.09.2004 and Criminal Revision Petition bearing CRR No. 65/2005 filed by father of the victim challenging the aforesaid judgment to the extent of acquittal of the appellant/respondent No.2 of offence under section 302 RPC, are proposed to be disposed of. It is pertinent to mention here that vide the impugned judgment dated 28.09.2004, learned Principal Sessions Judge, Jammu (hereinafter to be referred as the trial court) has in a case arising out of FIR bearing No. 130/1994 for offence under section 302 RPC registered with Police Station, Bakshi Nagar, Jammu convicted the appellant for offence under section 498-A RPC but acquitted him of the charge under section 302 RPC. In proof of offence under section 498-A RPC, the appellant has been sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs. 2000/-. 2. As per the prosecution case, Smt. Anita Puri, wife of appellant/accused died in mysterious circumstances on 11.05.1994. She had entered into wedlock with the appellant in December, 1991. The Police initiated inquest proceedings under section 174 Cr.P.C. During the proceedings, statements of witnesses were recorded. The dead body was taken into possession and its post mortem examination was conducted. As per opinion of the Medical Board, the deceased had died due to asphyxia as a result of strangulation. Accordingly, FIR No. 130/1994 for offence under section 302 RPC was registered and investigation was set into motion. 3. During investigation of the case, it was established that the appellant/accused and his family members started making demands for dowry after the marriage and in fact father of the deceased was compelled to pay money but due to financial constraints, he could not continue the payment after the year, 1993. This resulted in straining of marital relation between the appellant and the deceased and ultimately, the appellant committed the murder of the deceased. Offences under sections 302 RPC and 3/25 Dowry (Restraint) Act were established against the appellant and the challan was laid before the court. 4. Vide order dated 24.09.1994, the learned trial court framed charges under sections 306 and 498-A RPC against the accused/appellant. Offences under sections 302 RPC and 3/25 Dowry (Restraint) Act were established against the appellant and the challan was laid before the court. 4. Vide order dated 24.09.1994, the learned trial court framed charges under sections 306 and 498-A RPC against the accused/appellant. This order was, however, challenged by the father of the victim before this Court and vide order dated 05.05.1997, this Court directed the trial court to frame charges for offence under sections 302 and 498-A RPC against the accused/appellant. Accordingly, vide order dated 26.07.1994, charges for aforesaid offences were framed by the learned trial court against the appellant/accused. The appellant denied the charges and claimed to be tried. The prosecution was, therefore, directed to lead evidence in support of its case. The prosecution examined PWs Harbans Lal Nanda, Santosh Devi, Bansi Lal, Jaisu Charan Singh, Bholi Devi, Sanjay Kumar, Anil Gupta, Anil Nargotra, Rajesh Nanda, Dr. Anayat Ullah Sheikh, Satdev Singh, Jatinder Kapahi, Bashir-ud-Din and R. K. Jalla as witnesses in support of their case. However, PWs Chaman Lal Puri, Susheela Devi and Amar Nath were not examined by the prosecution and they were given up. After completion of the prosecution evidence, the statement of accused/appellant under section 342 J&K Cr.P.C. was recorded in which he disputed the veracity of the prosecution case and he claimed that he has been falsely implicated. He also claimed that the deceased was feeling frustrated because of miscarriage and this may have compelled her to commit suicide. The appellant/accused examined one witness, namely, DW Parvesh in defence. 5. The learned trial court after appreciating the evidence on record, came to the conclusion that there was not clear evidence to show that the deceased had died due to homicidal strangulation. According to the learned trial court, the prosecution failed to prove on the basis of the circumstances alleged by it that the appellant/accused has caused murder of the deceased. Accordingly, the trial court has acquitted the appellant/accused of the charge of murder. However, the learned trial court on the basis of evidence on record, came to the conclusion that repeated demands of dowry were made by the accused/appellant from the deceased and she was subjected to cruelty and harassment. Thus, charge for offence under section 498-A RPC was found established against him and he has been convicted of the said offence. 6. However, the learned trial court on the basis of evidence on record, came to the conclusion that repeated demands of dowry were made by the accused/appellant from the deceased and she was subjected to cruelty and harassment. Thus, charge for offence under section 498-A RPC was found established against him and he has been convicted of the said offence. 6. The appellant has challenged the impugned judgment passed by the learned trial court, on the grounds that the evidence on record has not been appreciated properly by the learned trial court as inadmissible evidence has taken into account, while holding the appellant guilty of the charge of offence under section 498-A RPC. It has been further contended that there was no evidence on the basis of which it could be said that the appellant had treated his wife with cruelty and that the evidence relied upon by the trial court is full of contradictions. It has also been contended that the incriminating evidence which has been used against the appellant has not been put to him to seek his explanation, while recording his statement under section 342 of the J&K Code of Criminal Procedure (J&K Cr.P.C.). 7. The Revision petitioner has challenged the impugned judgment to the extent of acquittal of the appellant of the charge for offence under section 302 RPC, on the grounds that the learned trial court has ignored the vital evidence on record. It has been contended that from the statement of PW Dr. Anayat Ullah Sheikh, it is clear that the death of the deceased had taken place due to strangulation, which was homicidal in nature. 8. I have heard learned counsel for the parties, perused the record, the impugned judgment, the grounds of appeal, the grounds of revision and the record of the trial court. 9. Before coming to the charge for offence under section 498-A RPC, let us examine whether or not from the evidence on record, the charge for Section 302 RPC is established against the appellant. It is an admitted position that there is no eye witness to the occurrence. The whole case of the prosecution is based upon circumstantial evidence. The main ground on the basis of which the revision petitioner has claimed that it is a case of murder is the post-mortem report of the deceased and the statement of Dr. Anayat Ullah Sheikh. 10. The whole case of the prosecution is based upon circumstantial evidence. The main ground on the basis of which the revision petitioner has claimed that it is a case of murder is the post-mortem report of the deceased and the statement of Dr. Anayat Ullah Sheikh. 10. As per the opinion of the Medical Board, the cause of death of the deceased was asphyxia as a result of strangulation. The Board has not clarified as to whether the death in this case was suicidal or homicidal in nature. Dr. Anayat Ullah Sheikh, who was a member of the Medical Board, has stated that the Board was never asked to give any such opinion. He has also stated that there were no struggle marks existing on the body of the deceased excepting minor injuries, which include three abrasions present over the base of nails of right thumb, right index and the middle finger over the dorsal aspect, a bruise over the palmer aspect of the tip of the right index of the deceased. As per post-mortem report, there were ligature marks obliquely placed above and to the right side of the thyroid cartilage, extending up to mastoid process. However, no abrasion/bruises were present along the entire length of the ligature mark. The Doctor has, in his cross examination, clearly stated that the death in this case could be suicidal also. In addition to this, no fracture was detected in the hyoid bone of the deceased. This supports the theory that the death of the deceased was not homicidal in nature as in most of the cases of the homicidal strangulation, hyoid bone gets fractured. The prosecution during the course of trial or during the course of investigation did not produce the alleged weapon of offence, the dupatta before Dr. Anayat Ullah Sheikh to elicit his opinion whether the ligature mark in question could be caused by the said dupatta, particularly when the prosecution was clearly given a hint in this regard by this Court, while directing framing of charge under section 302 RPC against the appellant in its order dated 05.05.1997. 11. In addition to the above, we have on record the statement of PW-5 Bholi Devi, who was present in the same house in which the occurrence took place at the relevant time. 11. In addition to the above, we have on record the statement of PW-5 Bholi Devi, who was present in the same house in which the occurrence took place at the relevant time. She has stated that she was washing clothes in the compound when the accused came there, whereafter he left his child near his wife. Thus, the statement of this witness has created a doubt about the presence of the accused at the place of occurrence at the relevant time. 12. Investigating Officer, PW-11 Satdev Singh has stated that the bolt of the door of the room in which deceased had died had been broken, which shows that the door was broken open forcibly. The prosecution case throughout has been that the door of the room in which the deceased died was bolted from inside and the door was opened by the accused/deceased from outside by breaking the bolt when he heard the cries of the child coming from inside the room. This circumstance militates against the theory of murder as it shows that the appellant was not present inside the room in which the deceased had died. In fact, as per the evidence on record, the appellant came inside the room after the deceased had died. These circumstances established on record clearly rule out the theory of murder of the deceased by the appellant/accused. Thus, the learned trial court has rightly acquitted the appellant of the charge of murder. 13. That takes us to the charge for offence under section 498-A RPC. As per the prosecution case, there were persistent demands of dowry and money from the side of the appellant, which resulted in harassment and cruelty to the deceased. In this regard, much reliance has been placed upon the statements of the family members of the deceased, particularly her parents, PWs Harbans Lal Nanda and Santosh Devi as also on the statement of her brother PW Rajesh Nanda. 14. According to the learned trial court, as per the evidence on record, the deceased had been complaining about the acts of the appellant and his family members for which her parents had been pleasing them by providing money. Learned trial court has also observed that parents of the deceased had been paying money to the appellant every month and when they stopped to do so, the deceased was compelled to take the extreme step of committing suicide. Learned trial court has also observed that parents of the deceased had been paying money to the appellant every month and when they stopped to do so, the deceased was compelled to take the extreme step of committing suicide. It has also been observed that as per evidence on record, the deceased had to leave her matrimonial house for about 40 days. For reaching the aforesaid conclusion, the learned trial court has mainly relied upon the statements of parents and brother of the deceased. 15. PW Harbans Lal Nanda has stated that his daughter told him that the appellant is asking her to pay money. He gave to her Rs. 4000/- and thereafter started paying Rs. 3000/- per month to the deceased. He has nowhere stated that the appellant had at any point of time made any demand of money from him. PW Santosh Devi, the mother of the deceased has reiterated the allegations made by her husband in her statement. However, in her cross examination, she has stated that she has never seen the deceased and the accused quarrelling with each other. She however, stated that her son narrated that once the deceased and the accused had a quarrel but that is an old story. She further stated that she did not get any information from any source to the effect that her daughter was being harassed. She went on to state that the accused has never made any demand but his conduct would show so. PW Rajesh Nanda repeated that amount of Rs. 3000/- per month was being paid to the deceased. In his cross examination, he has stated that he does not remember as to on what date or day for the first time, the money was paid to the deceased. He contradicted his mother's statement by stating that in his presence, accused never gave a beating to the deceased. He has also stated that he has never visited the house of the accused. He tried to cook up a story that the accused had made a demand for money for purchasing a scooter and he was paid Rs. 25,000/- but when confronted with his statement under section 161 Cr.P.C. during his cross-examination, he stated that no such statement was made by him during investigation of the case. 16. He tried to cook up a story that the accused had made a demand for money for purchasing a scooter and he was paid Rs. 25,000/- but when confronted with his statement under section 161 Cr.P.C. during his cross-examination, he stated that no such statement was made by him during investigation of the case. 16. From the foregoing analysis of statements of three close relations of the deceased, it is clear that there is no consistent and reliable evidence on record to show that the deceased was making any demand of money or of any other articles from the aforesaid prosecution witnesses. In fact the mother of the deceased has clearly stated that the deceased had never made any demand but his conduct would show that he was making demand. She has not explained as to what sort of conduct of the appellant made her to infer that he was making demand. She has also stated that she did not get any information from any source to the effect that her daughter was being harassed. 17. In addition to the above contradictions and infirmities in the statements of aforesaid witnesses, there is an important aspect of the matter which has not been properly appreciated and dealt with by the trial court. During the course of inquest proceedings under section 174 Cr.P.C., none of these prosecution witnesses has made a complaint to the Police that the deceased was being harassed on account of demands of dowry. Their stand in this regard came to the fore only during investigation of the case, when the FIR had already been registered and their statements under section 161 Cr.P.C. were being recorded after about 20 days of the occurrence. The Investigating Officer has, in his statement, deposed that the father of the deceased did tell him during inquest proceedings that relations between the deceased and the appellant were stained but he has nowhere stated that the appellant/accused was making demands of money or dowry from the deceased. In fact, the Investigating Officer has, in his statement deposed that it is only because of the opinion given by the Board of Doctors in the post-mortem report that FIR was registered meaning thereby no foul play was alleged by anyone including the relations of the deceased during the inquest proceedings. In fact, the Investigating Officer has, in his statement deposed that it is only because of the opinion given by the Board of Doctors in the post-mortem report that FIR was registered meaning thereby no foul play was alleged by anyone including the relations of the deceased during the inquest proceedings. In fact, the defence during the course of cross examinations of above-named witnesses has specifically asked them as to why they did not make the allegations relating to cruelty known to the Police earlier, but the witnesses did not come up with any explanation. Such belated allegations of dowry demands made by the members of the family of the deceased which include the above-named persecution witnesses, without there being any explanation from them or from the Investigating Officer, makes their statements unreliable. 18. In my aforesaid view I am supported by the ratio laid down by this Court in the case of State v. Rakesh Kumar, (Cr.AA No. 9900004/2009 decided on 06.06.2023). The Court while considering the aspect of delay in making statement to the Police during investigation of the case, observed as under: "10. PWs Subash Chand, Joginder Lal, Kartar Chand, Vijay Kumar and Ganesh Dass have deposed that immediately prior to the occurrence, they were told by deceased Seema Devi that the accused used to beat her with dowry demands, however, they have failed to show as to why they had not filed any complaint in this behalf at the police station, women cell, court or to any representative in the village. They have further stated that from the date of disappearance of the deceased till the date of finding of her body they did [2][noting form] the police of the cruel treatment meted out to the deceased by the accused. The inaction of the witnesses, who were from the family of the deceased, in reporting the cruel treatment of the deceased by the accused to the police, court or any representative in the village for mediation, casts a doubt on the genuineness of the prosecution case. It seems that it is only when the dead body of the deceased was recovered, all these witnesses who are related to the deceased and belonging to her village started making accusations against the accused and not prior to that date. Despite being in touch with the investigating agency they maintained silence on the cruel treatment to the deceased. It seems that it is only when the dead body of the deceased was recovered, all these witnesses who are related to the deceased and belonging to her village started making accusations against the accused and not prior to that date. Despite being in touch with the investigating agency they maintained silence on the cruel treatment to the deceased. This unnatural conduct of these prosecution witnesses casts a doubt on the truthfulness of their testimony against the accused. It is strange and surprising that these witnesses, who are in close relation of the deceased, waited for such a long time and did not disclose the name of the accused at the very next day to the police. This muteness on their part, when they had opportunity to complain diminishes the value of their subsequent version. In the normal course of human conduct, the witnesses ought to have complained to the concerned police, if really, there had been harassment and demand of dowry and cruelty to the deceased on the hands of the accused, and no reason has been advanced by these witnesses for their silence and these factors cast doubts on the genuineness of the prosecution case itself." 19. In the face of the aforesaid legal position, the statements of PWs Harbans Lal Nanda, Santosh Devi and Rajesh Nanda as regards their allegations that the appellant had harassed and committed acts of cruelty against the deceased in connection with demands of dowry, cannot be relied upon. Same is the fate of the statement of PW Bansi Lal Nanda, the uncle of the deceased. He has in fact in his cross examination stated that parents of the deceased never told any person that the appellant was harassing their daughter nor did they make any complaint in this regard to the parents of the appellant. 20. Apart from the above, a further dent is caused in the story of the prosecution as regards the allegation of harassment meted out to the deceased, by the statement of PW Bholi Devi. She resides in the same house in which the deceased and appellant were residing. She has stated that the accused and his wife were living happily and she never heard of any quarrel between the two. She resides in the same house in which the deceased and appellant were residing. She has stated that the accused and his wife were living happily and she never heard of any quarrel between the two. PW Anil Nargotra, who happens to be a friend of brother of the deceased, has stated that nobody had informed him that the relations between the deceased and the accused were not good. In the face of this kind of evidence, the conclusion of the trial court that the deceased was being harassed by the appellant and his family members in connection with demands of dowry, is based on erroneous appreciation of evidence. 21. There is yet another important aspect, which has not been taken into consideration by the learned trial court. The statement of the appellant/accused under section 342 J&K Cr.P.C. has not been properly recorded by the trial court and the same has resulted in grave prejudice to him inasmuch as the circumstances that have been used by the trial court against him while passing the judgment of conviction have not been specifically put to him for seeking his explanation. The fourth question framed by the learned trial court while recording the statement of appellant under section 342 J&K Cr.P.C. runs into as many as two pages written in Urdu, which if translated in English, would run into at least five pages. This question relates to the statements made by star witnesses PWs Harbans Lal Nanda, Santosh Devi, Bansi Lal and Rajesh Nanda. On the basis of statements of these very witnesses, the learned trial court has recorded conviction of the appellant for offence under section 498-A RPC. A single question running into so many pages has been framed by the learned trial court and asked the appellant to answer the same. The appellant in his answer has clearly indicated that being a long question, he feels difficulty in understanding the same. In spite of this, the learned trial court has not re-framed the question by making it more specific and brief so that the appellant could understand the same properly and frame a proper response. 22. In a criminal trial, recording of statement of an accused under section 342 J&K Cr.P.C., which in para materia with Section 313 of the Central Cr.P.C., is not an empty formality. 22. In a criminal trial, recording of statement of an accused under section 342 J&K Cr.P.C., which in para materia with Section 313 of the Central Cr.P.C., is not an empty formality. A duty is cast upon the court to put questions to the accused for the purpose of enabling him to explain the incriminating circumstances appearing in the evidence against him. The importance of framing a proper questionnaire by the court while recording the statement of any accused under section 342 Cr.P.C., has been emphasized by the Supreme Court in its various judgments. Some of these judgments are being noticed hereinafter. 23. The Supreme Court in the case of S. Harnam Singh v. State (Delhi Admn.) (1976) 2 SCC 819 in paragraph 22 has held as under: "22. Section 342 of the Code of Criminal Procedure, 1973, 1898, casts a duty on the Court to put, at any enquiry or trial questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under section 537 of the Code." 24. Again, in the case of Asraf Ali v. State of Assam, (2008) 16 SCC 328 , the Supreme Court observed as under: "21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State ( AIR 1976 SC 2140 ), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise." 25. The Supreme Court in a recent decision in the case of Raj Kumar @ Suman v. State (NCT of Delhi), 2023 LiveLaw (SC) 434, after noticing the legal position, summarized the same as under: "16. The law consistently laid down by this Court can be summarized as under: (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction; (ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; (iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused; (iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused; (v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. It will vitiate the trial if it is shown to have prejudiced the accused; (v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident; (vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and (vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under section 313 of Cr.P.C., 1973. (viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered. 26. From the forgoing analysis of law on the subject, it is clear that each material circumstance appearing in the evidence against an accused has to be put to him specifically, distinctly and separately and if it is not done, it amounts to serious irregularity vitiating the trial, provided it is shown that the accused was prejudiced. It is also clear that non examination of an accused under section 342 J&K Cr.P.C. (313 Central Cr.P.C.) is an irregularity which may in normal circumstances be cured by remanding the case to the trial court for recording fresh statement of the accused, but if there is a long passage of time from the date of incident, the defect becomes incurable. 27. Adverting to the facts of the instant case, as already noticed, the trial court has not properly recorded the statement of the appellant under section 342 J&K Cr.P.C. inasmuch as incriminating circumstances that have been used by the learned trial court while passing the impugned order of conviction, have not been put to him specifically, distinctively and separately. This has caused grave prejudice to the appellant and he has conveyed this to the trial court while answering the questions. Still then, the learned trial court did not take the corrective steps. Thus, the irregularity in recording the statement of the appellant has persisted despite the same having been brought to the notice of the trial court. 28. This has caused grave prejudice to the appellant and he has conveyed this to the trial court while answering the questions. Still then, the learned trial court did not take the corrective steps. Thus, the irregularity in recording the statement of the appellant has persisted despite the same having been brought to the notice of the trial court. 28. The next question that arises for consideration is whether the irregularity can be corrected by remanding the case to the trial court for recording the statement of the accused afresh. In the instant case, the incident has taken place on 11.05.1994 i.e. about 29 years back. If at this stage, the case is remanded to the trial court for recording the fresh statement of the accused under section 342 Cr.P.C., it will cause grave prejudice to him as he would be relegated to trial after 29 years of the incident. In these circumstances, the defect and irregularity committed by the trial court has become incurable. The same, therefore, vitiates the impugned judgment of conviction. 29. It has been contended by the learned counsel for the State that the death of the deceased has taken place inside the house of the appellant and as per section 106 of the Evidence Act, this is a fact within his special knowledge, as such, it is for him to explain as to in what circumstances the death of the deceased had taken place. 30. It is true that the death of the deceased had taken place while she was living in the house of the appellant/accused, who happened to be her husband, but then in his statement recorded under section 342 Cr.P.C., the appellant has clearly stated that he was not present in his house and because the deceased was feeling depressed on account of miscarriage, she may have taken the extreme step. The prosecution has been unable to establish that the deceased was done to death by the appellant and that the appellant was present in the house at the relevant time. Therefore, the explanation of the appellant that the deceased may have committed suicide appears to be plausible, though the reason for commission of suicide as given by the appellant in his statement under section 342 Cr.P.C. has not been established. Therefore, the explanation of the appellant that the deceased may have committed suicide appears to be plausible, though the reason for commission of suicide as given by the appellant in his statement under section 342 Cr.P.C. has not been established. Even otherwise once harassment on account of demand of dowry has not been established and once it is shown that prejudice has been caused to the appellant due to improper recording of his statement under section 342 Cr. P.C., the other aspects of the case pale into insignificance. 31. For the forgoing reasons, the appeal is allowed and the impugned judgment of conviction and order of sentence passed by the trial court is set aside and the appellant is acquitted of the charge. His surety and personal bonds are discharged. The revision petition filed by the father of the victim is dismissed. 32. The trial court record along a copy of this judgment be sent down.